MR JUSTICE OUSELEY:
- This is an appeal against the decision of a Panel of the Conduct and Competence Committee of the Health and Care Professions Council, HCPC, given on 4 April 2017. It had found various allegations of misconduct proved against Dr Lovett, a consultant clinical psychologist, that his fitness to practise was impaired, and that the appropriate sanction was that he should be struck off. The appeal concerns the findings of fact by the Panel on the allegations found proved against him.
- The HCPC was established under the Health and Social Work Professions Order 2001, as amended. Practitioner psychologists are one of the many professions it regulates for the protection of the public, the maintenance of public confidence in the profession, and the promotion and maintenance of proper professional standards and conduct for the members of those professions, as set out in article 3(4A). The right of appeal to this Court exercised by Dr Lovett against the Panel's decision striking him off the register is contained in article 29(9).
- Dr Lovett qualified in 1984, and had a specialist interest in psychological trauma, the subject of his doctorate. He had held many NHS posts, had advised Government on various issues, and had had a number of academic positions. His career, over 30 or so years, was unblemished. He also suffered from scoliosis, from birth, which had required many operations, and for which he had to take pain killers, as he did during the disciplinary proceedings.
- The complainants to the HCPC were twin sisters, A and B, who were referred to him, along with their autistic brother C, in May 2008. The referrals arose out of a very serious road traffic offence in April 2007, which had tragic consequences. B, her daughter and mother, were all together on the way to or from visiting A in hospital, where she was to have her first child. The driver of a bus driving dangerously, killed the mother, almost instantly, and injured B's daughter so seriously that she had to have a leg amputated; B herself was badly injured, with serious scarring and significant deformity as a result. The bus driver contested the criminal trial at which B had to give evidence.
- Civil proceedings were commenced by A, B and C, though in the end A had to accept that she had no actionable claim for her anguish; she had not witnessed the killing. The solicitor then acting for A, B and C in those proceedings, Ms Kennedy of Anthony Gold, recommended Dr Lovett to them all, as someone she had worked with in the past and trusted. The referral was for assessment of psychological conditions related to the trauma of the dangerous driving offence, primarily actual or potential post-traumatic stress disorder, PTSD. Although Dr Lovett saw C, and C's relationship to the two sisters is relevant to some of what Dr Lovett said, these proceedings do not directly concern him.
- A, B and C had a number of sessions of treatment with Dr Lovett in late 2008-2009; in 2009 the relationships with A and B respectively broke down and the relationship with C ended as well. These sessions had included home visits; A and B sought their medical records from him mainly if not wholly for the purpose of checking invoices which they said Dr Lovett had submitted for sessions not done, and his allegedly double counted travel expenses. When the medical records were eventually disclosed, A and B were greatly angered by the content of two documents, one in A's records, and one in B's, variously described as diagnoses or formulations, which referred to A and B as having personality disorders. A and B complained to the HCPC. They also made complaints on behalf of C, but none feature in the appeal.
- These various complaints were considered by the HCPC's Investigating Committee. In March 2012, after considering written submissions on behalf of Dr Lovett, it concluded that there was a case for him to answer, and the particulars were referred to the Conduct and Competence Committee.
- The particulars and their terms are relevant to the way in which the proceedings were conducted, progressed and to how the case was argued before me. I set them out.
"Between 2008- 2012, whilst practising as a Clinical Psychologist, you:
1. Charged …[A] for treatment sessions on the following dates which did not take place: [6 are listed].
2. Charged…[B] for treatment sessions on the following dates which did not take place: [5 are listed].
3. Charged…[C] for double appointments on several occasions when the session were not double appointments.
4. Arrived late on several occasions for appointments (but on each occasion charged for a full appointment) with [A, B and C].
5. Falsely claimed for travel expenses for visits for purported visits to [B and C] on [16 dates].
6. Did not provide:
[A], her General Practitioner, and/or any other health professional responsible for her care with a copy of her health records;
[B], her General Practitioner, and/or any other health professional responsible for her care with a copy of her health records;
[C-likewise].
7. Made false or unjustified statements to [A's] General Practitioner, to the effect that:
[A] has "underlying psychological problems"; and
"there are numerous safety issues surrounding [A's] psychopathology to herself and others under her care".
8. Made a false or unjustified statement to [B's] General Practitioner, to the effect that the release of [B's] health records may cause harm.
9. Did not provide [B] with appropriate treatment for post-traumatic stress disorder in that you [did not refer her to a trauma counsellor, or for Cognitive Behaviour Therapy or provide advice in relation to panic attacks].
10. Did not refer [A or B] to the respective General Practitioners.
11. Did not [set the goals of your therapy sessions with A or B].
12. Acted outside the scope of your practice in that, you [provided B with advice in relation to her personal injury claim].
13. Made false or misleading claims in that, you [informed A that you were registered with the GMC, were approved by all major medical insurance company when AXA PPP had revoked recognition, and accused A of making 50 harassing phone calls to you].
14. The matters set out in paragraphs 1,2,3,4,5 and 13a) and b) were dishonest.
15 and 17. [All matters except 9 to 12 amounted to misconduct; 9-12 amounted to lack of competence and/or misconduct].
16 and 18. By reason of that misconduct or lack of competence your fitness to practice is impaired."
- The crucial particulars, upon which this appeal was brought, are particulars 6 to 8.
- The Panel found that Dr. Lovett had made statements which he knew to be false in two documents each described as a "diagnosis" or "formulation" of personality disorder, one in respect of A (particular 7) and the other in respect of B (particular 8). He had used those documents as the basis for imposing unjustifiable conditions, unjustifiable because of their falsity, on the disclosure of the medical records of A and B to their GPs (particular 6), in letters of 14 November 2011. One of the themes of Mr Grant, on behalf of Dr. Lovett in this appeal, was the inadequacy of the particulars to convey the actual issues upon which the Panel hearing turned. Mr Grant had not appeared below; there, Dr. Lovett had been represented by three different legal teams, in succession.
- It is obvious that, if Dr Lovett, a clinical and treating psychologist, knowingly made false statements about the psychological condition of a patient, in medical records which he had only disclosed, whether to the patient or the General Practitioner, on the basis that care would be taken by other medical professionals in how they were presented to the patient, because of the harm he realised the statements could cause, it was misconduct impairing his fitness to practise, which would inevitably lead to his being struck off.
- I shall have to consider how those matters were presented and evolved in the course of recounting the progress of the Panel's hearings and its decision-making. Progress was not smooth. The substantive hearings began on 25 November 2013, after preliminary hearings which had begun a year earlier. On Day 13, 12 December 2013, Dr. Lovett collapsed after the hearing, never to return. His changing medical circumstances led to adjournments, and applications for stays which were partially successful. After a number of adjournments and directions, the final hearing on the facts was on 2 February 2017. The Panel then announced its findings of fact in early March. The further hearings concerned whether the facts found amounted to misconduct, whether fitness to practise was impaired and sanction. Its Final Decision on all issues was dated 4 April 2017. Had it not delivered its decision by July 2017, the process would have had to start all over again, since the retirement of one of its members would have made it inquorate.
- Dr Lovett appeals on grounds, which although numbering 32 in the Claim Form, were mostly reformulated by Mr Grant into three very broad main issues. I summarise them as: (1) the Panel's treatment of the psychological evidence about the difference between diagnoses and formulations, the evidence supporting his allegedly fabricated formulations, and the expert evidence about this; (2) the Panel had misunderstood how the case on falsity was pleaded, had failed to analyse the evidence and issues properly, including the absence of motive and contradicting contemporaneous evidence, and had failed to appreciate the significant lack of clarity in the way allegations of false statements, knowingly made, should be particularised, put in cross-examination and judged and (3) the Panel ought, at least, to have stayed the proceedings when it became clear that Dr Lovett had limited capacity to participate further in the proceedings, and even more so when it knew that he had no capacity at all by the time of its final decision. Its failure to do so was unfair. But there were many aspects of the conduct of the proceedings and decisions with which Mr Grant took issue.
The course of proceedings
- The Panel consisted of two lay members, one of whom was in the chair, and a practitioner psychologist, Dr Cohen, with experience in clinical and forensic psychology. The main hearings had been preceded by a number of preliminary hearings concerned with witnesses, and the disclosure of A and B's medical records to Dr Lovett. Some parts were heard in private. I have referred to the reasons for anonymity of A, B and C in the second appendix to this judgment.
- B's evidence commenced on Day 1, and concluded on Day 3, almost all of the time being taken up by her cross-examination by Ms Foster QC, a very experienced advocate in this area, on behalf of Dr Lovett. A gave evidence on Day 3 until the end of Day 5, again almost all of which was cross-examination. There were, after all, many and detailed particulars. Dr Halari, the psychologist expert called by the HCPC, gave evidence on Days 6-7; Mr Grant was critical of the fact that she had not been present for the evidence of A or B, though it is clear that a suggestion he made, that she might well not have seen Dr Lovett's session notes when she made her report, was wrong. Professor Powell, the psychologist expert instructed on behalf of Dr Lovett, was present for her evidence. On Days 8-9, the Panel heard submissions about whether Dr Lovett had a case to answer. On Day 10, it announced its conclusion that he had no case to answer on particular 2, except in relation to one of B's sessions; particular 4; particular 5, except in relation to one date; particular 6(c) on the basis that there was insufficient evidence of an obligation on the part of Dr Lovett to supply C's records; particular 9, except in relation to advice on panic attacks; particulars 12 and 13; and particular 14, except in relation to particular 1, the surviving part of particular 2, particular 3 and the surviving part of particular 5.
- Whether the Panel was right or wrong to do so, and it is an issue in the appeal, it had made it clear in its decision on whether there was a case to answer, that particulars 7 and 8 required the HCPC to show that the statements either were made knowing them to be false, or were made with insufficient objective justification. The Panel rejected Ms Foster's contention that as particular 14, dishonesty, did not cover particulars 7 and 8, the word "false" in those particulars could not mean "knowingly false", and instead meant simply "wrong".
- It was quite early on Day 10 that Dr Lovett commenced his evidence in chief. Although he had provided a lengthy and detailed statement of some 211 paragraphs, he gave further substantial evidence in chief until after lunch on Day 12. At the close of Day 13, Ms Norris, the Presenting Officer for the HCPC, said that she had only two more topics left on which to cross-examine Dr Lovett about B, and would then have to cross-examination him about A, rather more shortly because much of the ground had already been covered.
- Dr Lovett collapsed at some point later in that day. He would never again be fit to continue his oral evidence.
- The future progress of the hearing was discussed on the planned resumption on 16 December 2013, and again on 19 December 2013, at which the Panel permitted Ms Foster to speak to Dr Lovett about the further evidence which might be called. On 8 January 2014, with Dr Lovett still too ill to attend, the case was adjourned to 19 March 2014 and again on the basis of medical evidence, until 3 November 2014. In July 2014, the Panel now "directs" that members of Dr Lovett's legal team "may speak to him" in order to determine whether witnesses should be called and about how "to facilitate the case proceeding in his absence if he is unfit to attend the case." The Panel recorded its view that if Dr Lovett were unable to attend or participate remotely in the hearing when it resumed, "there is a real possibility that a direction might be made to proceed notwithstanding his absence." Therefore if, as the resumed hearing dates approached, Dr Lovett's participation seemed doubtful, the Panel suggested that Dr Lovett consider, with his legal team, making a statement "dealing with any further issues he would wish to deal with evidentially".
- On 3 November 2014, Dr Lovett applied for an adjournment, supported by a report from Dr Prabhakaran, a consultant psychiatrist: Dr Lovett's attention and concentration were significantly impaired, as various professionals had noted; this was probably related to side-effects of the regular use of opioid analgesics; it was unlikely that he would be able to follow proceedings sufficiently to comprehend the complexities of the evidence so as to instruct his legal team; he would struggle to assimilate the evidence sufficiently to discuss closing submissions. The HCPC applied for the case to continue in the absence of Dr Lovett.
- On 5 November 2014, the Panel decided to give directions for the case to proceed in Dr Lovett's absence. These included that the HCPC should file its submissions by 14 November 2014, and Dr. Lovett by 3 December 2014. It was to hear Mrs Lovett's evidence on 24 November 2014. This was a crucial decision for the way the case proceeded through to the final decision in 2017. The Panel set out at considerable length what had happened since Dr Lovett's collapse on 12 December 2013, reports from his GP in December 2013, and from his consultant spinal surgeon, which had led to the adjournments thus far. It referred to R v Jones [2002] UKHL 5 for the principles to be applied to this decision, including whether any adjournment might enable Dr Lovett to attend, how his legal representatives could present his case and take instructions in his absence, any disadvantage to Dr Lovett in not attending and being unable to give instructions, and the general public interest that the allegations should be disposed of within a reasonable time.
- The Panel concluded first that there were no reasonable adjustments which could enable Dr Lovett physically to participate in any way. It next said that it had given full weight to Dr Prabhakaran's "reservations about Dr Lovett's ability to deal with complexity" but had concluded that Dr Lovett "does have sufficient capacity to give [appropriately detailed instructions] in the circumstances of this case." It noted the significant cognitive impairment in attention and concentration. But the question was whether the impairment was such that, in the circumstances of this case, "he could not give reasonable instructions to his representatives in sufficient detail for them adequately to fulfil their task." The Panel then considered the extent to which complex and demanding questions remained, on which Dr Lovett would need to take a view; this it saw as "a most important consideration".
- The evidence which actually remained to be heard was the conclusion of Dr Lovett's cross-examination, re-examination and any questions from the Panel, the oral evidence of Dr Powell, whom Ms Norris did not expect to be long with in cross examination, and the oral evidence of Mrs Lovett, who was Dr Lovett's practice manager. Mr Ullstein QC had made a statement in support of Dr Lovett's good character; he might not be called as there were no questions which Ms Norris or the Panel wished to ask him.
- The Panel said this: "The stage of the case now is that to all intents and purposes the evidence has been heard." The HCPC evidence had all been heard, as had all Dr Lovett's evidence in chief; it was the HCPC which was likely to suffer prejudice if it were unable to cross-examine him on the remaining issues, but the Panel recognised that no adverse inferences could be drawn from the fact that Dr. Lovett had given no answers on those issues. The expert evidence of Dr Powell had been agreed by the HCPC. Mrs Lovett had submitted quite a substantial witness statement, "largely regarding administrative procedures about billing", as the Panel put it, which Dr Lovett had already given evidence about. So far as submissions were concerned, "it is not unreasonable to assume that his highly qualified legal team will be able to construct cogent and comprehensive submissions with relatively little help from him." It concluded that what remained of the case "is highly unlikely to raise issues of the sort of complexity that would challenge Dr Lovett's impaired cognitive functioning." If the issues were presented to him clearly in manageable portions and at an acceptable pace, there was no reason to believe that he would be unable to give appropriate instructions in detail to his representatives. It did not accept Dr Prabhakaran's judgment that Dr Lovett would be unlikely adequately to be able to instruct his team, because the Panel thought that Dr Prabhakaran had considerably overstated the potential complexity of the remainder of the case. The Panel also thought it difficult to see why Dr Lovett would be in difficulties following the evidence of Dr Powell, or in giving directions about it, when he had had it for over a year.
- The Panel considered that a threatened withdrawal of the legal team, on the grounds that Dr Lovett was incapable of giving instructions to it, was not justified on the evidence as to his capacity, and that it would amount to a voluntary abandonment of the future conduct of his case. But if the team continued to participate, "the Panel is unable to identify any detriment likely to affect Dr Lovett's case. Indeed it is the Panel's view that even if it is wrong about Dr Lovett's mental capacity to give appropriate instructions to his team, it is highly unlikely that any inability to give further instructions would prejudice his case at this stage. To all intents and purposes he has prepared his defence and presented it with his team and it is very difficult to see what difference of substance further participation could bring."
- Finally, the Panel considered the effect of granting the adjournment sought by Dr Lovett on the public interest in the resolution of the case. It concluded that there was no prospect of an improvement in Dr Lovett's condition which indeed had worsened during 2014. There was no reliable prognosis offering a realistic prospect of a recovery in the foreseeable future sufficient for him to resume oral evidence. There was no reason to believe that adjournment for a later review of his condition would alter the position; rather the hearing would be delayed indefinitely, and a time would come when it would have to be accepted that the hearing would never finish. "Such an outcome would be highly detrimental to the public interest in that it would significantly undermine public confidence in the regulatory system, undermine confidence in Practitioner Psychologists, and undermine confidence in all professions subject to the same regulatory process." It also considered it important that the complaint made by A and B be resolved; the nature of the referral to Dr Lovett meant that they had to be considered "as vulnerable", and the continuing uncertainty of the validity of their claim "that their mental health was grossly and improperly impugned by Dr Lovett" undoubtedly remained a source of stress for them. Dr Prabhakaran had noted in his report that Dr Lovett was keen to participate and Dr Lovett had previously made it clear that he was keen for the proceedings to conclude. It was not in his interest either for such serious allegations to remain unresolved indefinitely.
- The Panel concluded that public confidence in the regulatory system "would suffer irreparable damage if the process for holding practitioners to account could be endlessly prolonged and frustrated." But it also accepted that if the hearing could not be concluded without unfairness to Dr Lovett, then it simply could not be concluded. However, that was not the position here. There was an overwhelming public interest in the hearing proceeding without further delay even in the absence of Dr Lovett, which it could do without unfairness to him. (I have taken this from the Panel's Private Decision, rather than the Public Decision, because it is fuller. It is the Private Decision which was referred to in Court.)
- The HCPC provided its written submissions as required. The hearing set for 24 November 2014, for the purposes of Mrs Lovett's oral evidence, was adjourned to 17 December because Dr Lovett was due to undergo major spinal surgery on 24 November. He was discharged from hospital on 6 December, but two days later had a heart attack and was still in hospital on 17 December. On 17 December 2014 the Panel adjourned the hearing to 20 April 2015. But on 19 January 2015, Dr Lovett was seriously injured in a car crash.
- On 16 March 2015, Mrs Lovett, as Dr Lovett's litigation friend, issued a claim for judicial review in respect of the Panel's decision of 17 December 2014. This was refused on paper as unarguable by William Davis J, and the application for an oral reconsideration was later withdrawn.
- On 20 April 2015, the Panel adjourned the hearing to 31 July, and directed that Dr. Lovett's capacity be assessed by Dr Fox, as the Panel refer to him, a consultant psychiatrist proposed by Dr. Lovett and selected by the Panel Chair over the HCPC's nominee. He is also referred to as Professor Fox.
- Around the end of May, Dr Lovett changed his legal team, both barristers and solicitors. William Edis QC took over.
- The opinion of Dr Fox, dated 21 July 2015, was that Dr Lovett:
"has capacity to litigate outside a hearing and he can interact with his solicitors; however it is my considered opinion that in the scenario of the hearing I do not believe he has the cognitive capacity to cope with being cross-examined or following evidence. It is my view that his attempts at concentration span is significantly limited and also his memory results in him making errors. I found in my assessment his concentration fluctuated and I do not believe that he will be able to comprehend the HCPC proceedings sufficiently to understand evidence in the hearing and from various experts to be able to discuss his responses to such evidence."
He would be unable to understand or follow information about the decisions he needed to make, to retain information in his mind, or communicate his decisions. He was not at present capable of effective participation. But Dr Fox thought that Dr Lovett's cognition was likely to improve sufficiently for him to participate in proceedings from early 2016, particularly if he had meanwhile some cognitive behavioural therapy.
- At the hearing set for 31 July 2015, the Panel granted a further adjournment to 4 December 2015, and made further directions for updated reports from the spinal surgeon, cardiologist and Dr Fox. The Panel confirmed to Mr Edis that he could discuss the strategic issues with Dr Lovett, though not the evidence he himself had given or which he might yet give in cross examination or re-examination.
- After further adjournments, the Panel held a further hearing on 14 March 2016. Dr Lovett sought a permanent stay or dismissal of all the particulars; the HCPC accepted that the hearing could not proceed on that occasion and proposed that the proceedings be adjourned sine die, with 6 monthly updates on Dr Lovett's health. It told the Panel that it wished to offer Dr Lovett an agreement for his voluntary removal from the register, but Mr Edis was unable to take instructions within the timeframe available, and that issue was then ignored by the Panel when coming to its decisions. The Panel considered further reports in particular those from Dr Fox, to which I shall come, before deciding that proceedings would continue in respect of particulars 6 (a) and (b), 7 (a) and (b), 8, 9(c), 10 and 11 (i.e. all the surviving parts of those particulars), 15, 16, 17 and 18 (the misconduct and impairment particulars); but that they would be stayed in respect of particulars 1,2(c), 3, 5 (n), and 14 (dishonesty), (i.e. all the surviving parts of those particulars). This was a further crucial decision.
- So the case proceeded on the following particulars:
"Between 2008-2012, whilst practising as a Clinical Psychologist, you:
6. did not provide:
a) [A], her General Practitioner, and/or any other health professional responsible for her care with a copy of [A's
health records;
b) [B], her General Practitioner, and/or any other health profession responsible for her care with a copy of [B's] health records; and
7. made false or unjustified statements to [A's] General Practitioner, to the effect that:
a) [A] has 'underlying psychological problems': and
b) 'there are numerous safety issues surrounding [A's] psychopathology to herself and others under her care.'.
8. made a false or unjustified statement to [B's] General Practitioner, to the effect that the release of [B's] health records may cause harm;
9. did not provide [B] with appropriate treatment for Post-Traumatic Stress Disorder in that, you:
c) did not provide [B] with advice in relation to panic attacks and/or refer her elsewhere for such advice.
10. did not refer [B and/or A] to the respective General Practitioners;
11. did not:
a) set the goals of your therapy session(s) with [A];
b) set the goals of your therapy session(s) with [B]; and
15. the matters set out in paragraphs 6, 7 and 8 amount to misconduct;
16. by reason of that misconduct your fitness to practise is impaired;
17. the matters set out in paragraphs 9, 10 and 11 amount to lack of competence and/or misconduct; and
18. by reason of that lack of competence and/or misconduct, your fitness to practise is impaired."
- The Panel then gave further directions, which included that the final hearing would continue in the absence of Dr Lovett, that there would be no further cross examination of him and that no further evidence would be adduced in relation to the factual particulars except "Dr Lovett is to be invited to submit a statement of evidence which will be admissible as material properly adduced in re-examination." For those purposes his legal representatives were permitted to present to him a list of proposed questions, and to speak to him about the evidence in order to direct his attention to those aspects of the case he might wish to deal with, and where the evidence relating to them might be found in the available documentation. Such a statement was to be submitted by 13 May 2016. A timetable for further hearings was then set, which made allowance for judicial review proceedings anticipated in respect of its 14 March decision.
- The Panel, in its decision, rehearsed the progress of proceedings to date. It then referred to Dr Fox's further report of 21 October 2015, his answers to the advocates and to the Panel given over the telephone and to a further report of 21 January 2016 responding to particular questions put by the parties. Dr Fox remained of much the same view as to Dr Lovett's present capacity as in his previous report. The Panel quoted this in its decision:
"Paragraph 4.4 of the report: "It is my view that he has the capacity to litigate outside the hearing and can interact with his solicitors but it is my opinion that in the scenario of a hearing, I do not believe that his cognitive capacity skill would cope with being cross-examined or following evidence. It is my view that his attempts at concentration span is limited and also his memory results in making errors. His concentration fluctuates and I do not believe that he would be able to comprehend the proceedings sufficiently to understand the evidence in the hearing and various experts to be able to discuss responses from such evidence. He is also suggestible and prone to errors which could result in him not communicating clearly."
- What Dr Fox meant by "capacity to litigate" was that "in a one-to-one or a small scenario, with his solicitors, he can discuss the case and how he wants to say, present or plead or whatever the scenario is, without going into details about the actual proceedings." Interacting with his solicitors in a non-adversarial manner was not impaired, nor was his long-term memory.
- The Panel did not refer to, but appear to have taken into account, that Dr Fox was also of the view that Dr Lovett's cognition had deteriorated because of his deteriorating physical health and increasing pain medication, calling into question an improvement in cognition in February 2016.
- The Panel quoted this from Dr Fox's 21 January 2016 report:
"I believe Dr. Lovett would have difficulty concentrating on the volume of evidence that he would have to review. To some extent it depends upon the detail of the information in the files that are presented to Dr. Lovett. If there are specific particulars and dates that he needs to check to try and refresh himself on this could require considerable time. In addition it depends on his pain level which could distract him and the amount of pain medication which will slow him down. A rough estimate of one lever arch file could take him a maximum of five days for him to process. The difficulty then would be his retaining the information therefore he may well have to produce notes to prompt him and if his pain was bad or his pain medication increased further this process is likely to be more significantly impaired."
- The Panel directed itself that Article 6 (1) ECHR applied, and that there could be no outcome of the decision which it was about to make, which would deprive Dr Lovett of a fair hearing. It also reminded itself of what Lord Bingham said in R v Jones, above:
"the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin."
- The Panel explicitly drew no distinction between a criminal case and a professional regulatory case, or between the commencement or continuation of a hearing. Having set out its decision as to what particulars would be stayed and which would continue, the Panel said that it had balanced the public interest against the interests of Dr Lovett, concluding that Dr Lovett would be assured of a fair hearing, which would be concluded in a reasonable time. It set out the interests as follows at [31-32]:
"i. If the particulars are true, then Dr. Lovett may pose a significant risk to public safety, and to fail to take appropriate action to address that risk would fail to protect the public and would undermine public confidence in the profession and in the regulator.
ii. The particulars against Dr. Lovett stem from complaints made by two of his service users who have claimed, amongst other things, that their mental health was grossly and improperly impugned by Dr. Lovett. The continuing uncertainty of the validity of that claim will undoubtedly remain a source of stress for those individuals, who by the nature of their referral to Dr. Lovett must be considered to be vulnerable. The issue needs to be resolved.
In considering the interests of Dr. Lovett the Panel has taken into account the following matters:
i. Dr. Lovett is entitled to a fair hearing and the public interest cannot justify, not be served by, any unfairness to Dr. Lovett.
ii. Dr. Lovett has always made it clear that he was keen for these proceedings to conclude and it cannot be in his interest for such serious particulars against him to remain unresolved, it that is avoidable."
- It repeated that the HCPC had presented all of its evidence, and had been cross-examined on it; Dr Lovett had given all of his evidence in chief and had been cross-examined on a substantial part of the case. It continued:
"Dr Powell's expert evidence has been agreed and the only issues which have been outstanding for the last two years have been what was predicted to be another half day of cross examination of Dr Lovett on behalf of the HCPC, any re-examination of Dr Lovett, any Panel questions, and the evidence of Mrs Lovett about the invoicing."
- It summarised the medical evidence and its conclusion in this way at [34-35]:
"34. It is clear from the medical evidence that there is no foreseeable prospect of Dr. Lovett's further personal attendance at the hearing. It is also clear from the medical evidence that Dr. Lovett's capacity to give instructions to his legal representatives is also limited in that for him to re-familiarise himself with the evidence would be difficult, and his ability to do so would depend upon the volume and complexity of the relevant information. However, his long-term memory was considered to be satisfactory and the problems with his cognition could be overcome if he was given plenty of time to reflect, for his understanding to be checked and if he was given assistance to identify the material relevant to the issue he is supposed to be considering.
35. Having applied this information about Dr. Lovett's capacity to undertake the tasks which will necessarily flow from a resumption of the case, it is clear that any further cross-examination will be impossible. Nor will it be possible for him realistically to re-familiarise himself with all the evidence necessary to address his re-examination or prepare submissions on particulars 1, 2(c), 3 and 5(n). This evidence is detailed, complex and potentially confusing. It will, however, if provided with the adjustments suggested by Dr. Fox, be realistic for Dr. Lovett to re-familiarise himself for those purposes with the very straightforward evidence n relation to particulars 6(a), 6(b), 7(a), 7(b), 8 and 9)c), 10 and 11. These all relate to his clinical treatment and assessments of Service Users A and B."
- The delay of two years did not make further deliberation unsafe or wrong; it had been anticipated on a number of occasions that proceedings would imminently resume. The Panel had the benefit of transcripts and its own comprehensive notes "which include how it was said, with reflections on demeanour and presentation." This "made it very confident that its assessment of the evidence will not be prejudiced by the delay." But there should be no further avoidable delay, because one Panel member would become ineligible to continue with the case in June 2017.
- It rejected the HCPC suggestion that the case should be adjourned sine die, because, in the circumstances, that would amount to abandoning the particulars; were they true and Dr Lovett resumed practice, this could involve a risk to public safety, and affect other aspects of the public interest. It rejected Dr Lovett's contention that the particulars as a whole be permanently stayed or dismissed. It roundly rejected his contention that he could not have a fair hearing because of the delay. The case had not begun in the spring of 2013 because Dr Lovett sought disclosure of documents prepared by a large number of other practitioners who had reported on A and B. The delay since December 2013 had been solely for the purpose of ensuring Dr Lovett could attend, following his requests, to which the Panel had agreed in the hope that he would be able to resume participation as he wished. The delays were not his fault "but it is not possible to see how he has been disadvantaged by them." There was no prejudice to Dr Lovett from the passage of time, and the case would be concluded within a reasonable time.
- Dr Lovett's own defence had long been thoroughly prepared, there had been no change to the case since he gave evidence, and he has the capacity "to prepare the evidence he may wish to adduce in re-examination, and to make decisions on the submissions to be made on his behalf." The Panel rejected Mr Edis' submission that Dr Lovett would be prejudiced through his cross examination not concluding and by the Panel not being able to ask questions of him. It said that he had heard all the HCPC evidence, was represented by leading and junior counsel, made a very full witness statement and spent two full days giving evidence in chief: "it is quite simply unrealistic to imagine that he would be likely to give further evidence to advance his own case in cross examination." No adverse inference could be drawn from the absence of answers to questions not put in cross examination. His case had been conducted thoroughly, and the scope for the Panel "to be left with unanswered questions was very limited." Nor could its inability to ask him questions prejudice him because any unanswered question could not redound to his disadvantage. In view of the particulars to be stayed, Mrs Lovett's evidence, which related solely to invoicing matters, had ceased to be relevant.
- As the Panel had anticipated, Dr Lovett commenced judicial review proceedings of this decision, on 18 April 2016. Permission was granted, and the substantive hearing was expedited to come before Cheema-Grubb J, who, on 8 July 2016, dismissed the application. There was no application for permission to appeal from her decision.
- Mr Edis for Dr Lovett argued before her that the decision to proceed was unfair, and taken in an unfair manner. I focus on certain specific issues which were also raised by Mr Grant. The lapse of time made the decision to continue with the hearing manifestly unfair. The distinction drawn by the Panel between particulars of dishonesty, which were stayed, and those which it refused to stay was irrational; the HCPC case had been that one reason for Dr Lovett's refusal to release clinical notes had been his desire not to reveal that his invoices were false. It would be a very substantial undertaking for Dr Lovett to have to examine all his clinical notes to deal with the remaining particulars. The legal team could only give limited guidance on the factual issues. There had been no psychological evidence addressed to Dr Lovett's capacity to cope with a further statement or other procedures, related to the specific split between the particulars to be stayed and continued with as decided upon by the Panel. There had been no chance for counsel to address this particular course, (although both parties had agreed before the Panel that it was not bound to adopt either of their approaches). The cross-examination of Dr Lovett by the HCPC had raised the question of whether two documents in the clinical notes had been fabricated, which was not a topic dealt with in the written evidence or evidence in chief, and he had only been cross-examined in relation to B's notes. Cross-examination could strengthen the impression which a witness made; the Panel was unrealistic to think that it could only undermine a witness. Dr Lovett could not re-examine himself in relation to A's particulars.
- Ms Richards QC for the HCPC had submitted to Cheema-Grubb J that the decision was fair, and that it was important not to exaggerate Dr Lovett's difficulties. His short term memory problems would arise were he put on the spot in a hearing. Cheema-Grubb J summarised a submission from Ms Richards, upon which Mr Grant put some weight, in this way:
"When the Committee drew a distinction between particulars involving dishonesty, which are stayed, and the broader, more general particulars focussing on the claimant's professional judgment regarding treatment et cetera, it demonstrated an obvious and valid concern to avoid the claimant having to deal any further with particulars involving detailed analysis of the evidence and cross referral to documents. It is not surprising that the panel used the word "straightforward" to describe the particulars remaining to be resolved. This was a perfectly sensible description and it reflects the fact that the claimant was able to deal with the remaining particulars in a concise way in his own statement."
- Cheema-Grubb J rejected Mr Edis' submissions. Cheema-Grubb J referred to the background and to the Panel decision, setting her judgment in the context of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, dealing with the absence of the registrant, and its related Practice Note.
- She concluded that the Panel's decision was fair in the light of the very unusual circumstances it had to deal with, its own detailed notes and the undoubted ability of the Panel to deal with the evidence even after the break of two years. It would no doubt be willing to consider variations to the precise terms of its directions to improve the hearing to make it as fair as possible. She cited Jones, above, and later Adeogba v GMC [2016] EWCA Civ 162, which recognised an important difference between professional disciplinary cases and criminal cases, because of the different ways in which the public interest was involved. She concluded that this case did indeed fall into that rare category of case where an involuntarily absent registrant could find the case heard and disposed of fairly. The Panel did not allow other factors to override its consideration of whether Dr Lovett would have a fair hearing. She pointed in particular to: (i) the part he had played so far, (ii) the limited role that further cross-examination had to play, because, in disciplinary hearings, cross-examination was essentially the opportunity to undermine the other side's case, and the adverse impact of the absence of cross-examination would be to the HCPC's disadvantage rather than to Dr Lovett, whose concerns had been overstated, (iii) that judgment was reinforced by his full witness statement and his unusual two days' evidence in chief, "carefully answering the particulars made by A and B during their evidence," which meant that Dr Lovett had provided several days of oral evidence during which the Panel could gauge his evidence, (iv) the Panel had been right to conclude, on the evidence about the degree and nature of Dr Lovett's cognitive impairment, that he would be able to engage with the proceedings in the manner provided for in the directions, including by way of a statement in re-examination; even though the experts had not been able to deal specifically with the course of action ordered by the Panel, the Panel had had sufficient evidence rationally to reach the conclusion it did on his capability, and (v) the Panel's distinction between those particulars which should be stayed and those which should proceed was carefully drawn and rational, demonstrating "a high degree of care in achieving the necessary balance between the rights of the claimant and the wider public interest .…"
- Cheema-Grubb J concluded her judgment on this aspect by saying that the Panel's reasoning was "detailed, careful and unimpeachable." She was not persuaded that it was wrong to order that the hearing proceed as it had directed. The manner in which the hearing was to recommence was not unjust.
- Finally, she dealt with the contention that the Panel had been unfair in the way it had reached that decision, in particular by allowing some of the particulars to proceed with a further statement in re-examination, taking counsel by surprise. This she also rejected. It did not need to set out its provisional view. She also said this at [58]:
"Insofar as the claimant wishes to pursue an argument that some of the particulars the committee has directed should proceed fall on the wrong side of the line it has drawn, and they are not accessible to the claimant in his current condition such arguments can be made and I would expect the committee to consider them rationally and fairly. But overall, it is impossible to conclude that the committee's decision to proceed in the way it has directed constitutes a serious procedural irregularity."
- On 18 July 2016, the Panel ordered a revised timetable for the service of any statement from Dr Lovett by way of re-examination (23 September 2016), and for submissions (HCPC 7 October and Dr Lovett 2 December 2016); oral submissions were to be heard on 9 December 2016, later varied to 16 December. HCPC filed submissions in materially the same form as in November 2014, omitting the stayed particulars. Mr Grant commented that this advanced a positive case that two documents in the medical records, the "formulations", were fabricated, and advancing three possible motives for Dr Lovett to act in that way. Dr Lovett filed nothing.
- But he changed his whole legal team in late September, with Mr Michael Horne QC now leading. On 23 September, having been told by Mrs Lovett that this was happening, the Panel Chair wrote to both parties, saying that it noted the intention to change Dr Lovett's legal team again, "at a time when it is asserted that his earlier capacity to give instructions has been further compromised." It rejected Mrs Lovett's application to suspend the current timetable, refusing to do so "in the absence of any evidence of what efforts have been made by, or on behalf of, Dr Lovett to provide the statement invited by direction (4), and of any evidence of his reduced capacity to do so throughout the period since the direction was issued."
- On 13 December 2016, Mrs Lovett applied to the Court of Protection to be made Dr Lovett's Deputy, and two days later sought an adjournment of the hearing set for 16 December. Cobb J appointed her as Dr Lovett's Deputy on that very day, with authority under the Mental Capacity Act 2005 limited to the conduct of litigation brought against him by the HCPC. The Panel, at the hearing on 16 December, granted a further adjournment to 1 and 2 February 2017. It recognised that a further application for a stay might then be made but said that if it were refused, the Panel would proceed to deal with submissions on the facts, statutory grounds and fitness to practise.
- On 24 January 2017, such an application was indeed made, for a permanent stay of the whole proceedings, or of particulars 7 and 8, relating to false or unjustified statements, on the basis of articles 6 and 8 ECHR. This application was rejected on 2 February 2017 in a written decision, after a hearing the day before. After further short adjournments, Mr Horne provided written submissions on the facts and made oral submissions. On 3 March 2017, the Panel sent its decision on the facts to Mrs Lovett.
- The Panel, in reaching its decision to reject the application for a permanent stay, took into account two further reports or opinions from Dr Fox, dated 13 December 2016 and 23 January 2017, but ignoring a third one, because Mr Horne said that it had not been intended to disclose it to the Panel. The Panel accepted both reports. Dr Fox considered that Dr Lovett continued to suffer from a combination of cognitive impairment and psychiatric illness. There had been limited improvement in cognition, but his other symptoms had deteriorated including depression and anxiety. Much of what he had to say was little different from his earlier views, but he now said that Dr Lovett did "not have the capacity to litigate outside the hearing now and can't interact with his solicitors. This has changed as he has become more anxious since my last assessment and he has become sensitised to the proceedings and issues with his judicial review experience and his ongoing physical health issues have also affected his anxiety." He was no longer able to make the decisions involved in giving instructions to his lawyers and important steps outside the hearing, including providing written submissions for re-examination and commenting on written submissions on the facts, misconduct, and fitness to practise. There were no practicable steps which would enable him to have the capacity to give the relevant instructions. In his letter of 23 January 2017, Dr Fox considered that it would be unreasonable for Mrs Lovett to attempt to engage with Dr Lovett about anything concrete for the preparation of the case because his mental health would inevitably deteriorate, he had little recall and attempts to encourage recall would distress him, and his emotional response would be stronger than for someone without his difficulties. The Panel also accepted a further opinion from Dr Lovett's cardiologist.
- The Panel set these reports in the context of Dr. Fox's earlier reports. It took Dr Fox's opinions "as clear evidence that Dr Lovett is currently incapacitated in relation to any participation in this case either personally or through any third party." It dealt with the issues raised by Mr Horne as follows.
(a) The Panel accepted that his physical absence and current incapacity were genuine and involuntary ill-health. "However, it does not accept that Dr Lovett's failures to provide any further evidence, or to make any relevant submissions when he had the capacity to do so, are not deliberate. It is the Panel's view that for a significant period Dr Lovett had both the capacity and the opportunity to provide any further evidence and to make any submissions. He chose not to do so."
(b) That last point was relevant to the submission that the loss of capacity now found represented a fundamental change since its 15 March 2016 decision and Cheema-Grubb J's decision of 8 July 2016. It accepted that Dr Fox's examination in October 2016 showed that Mr Lovett's capacity to interact with his legal team had changed over the preceding year and that Dr Lovett now lacked any capacity in relation to the case. That was only one factor to be considered in assessing whether or not it was unfair to proceed.
(c) The Panel considered a number of detailed points in relation to the claim that Dr Lovett now faced "serious and irremediable prejudice in the presentation of his case and all future stages of these proceedings." It rejected the assertion that, had he remained able to interact with his legal team, he would have been expected to provide information or instructions. It did so because Dr Lovett had failed to take the opportunity provided by the Panel's directions of March 2016 to provide a statement and submissions responding to the HCBC's submissions which he had had since November 2014. He had chosen to take that course and, even after the 8 July 2016 decision of the Administrative Court, he had chosen to challenge the conduct of his then legal team in relation to the judicial review. At no time in the last three years had there been any engagement by Dr Lovett in relation to the substance of the case, when as far back as 3 July 2014, the Panel had "directed" that consideration be given to his making a statement dealing with any further issues he would wish to deal with evidentially, yet no such statement had ever been submitted. Any prejudice he faced now "stems predominantly from his voluntary failure to avail himself of the opportunities offered to submit any further evidence or to be involved in the preparation of submissions." It could see no reason either why preparation of submissions should be "seriously handicapped" by the lack of Dr Lovett's personal involvement, in view of his legal team and its access to the material.
(d) If there were important evidence in relation to the statutory grounds and impairment he had had the opportunity likewise to provide that, but he had chosen not to do so. (I add that, on the facts as found by the Panel, this issue is irrelevant, as Mr Grant recognised).
(e) The Panel disagreed with Mr Horne's submission that the remaining allegations were not so serious that the public interest required their determination. It repeated its view as to the very serious allegations in some of the particulars; they were serious in terms of the general public interest in the proper conduct of registered health professionals and in terms of the alleged impact on A and B, two vulnerable service users who claimed that Dr Lovett had grossly and improperly impugned their mental health.
(f) Although it might now be unlikely that Dr Lovett would ever be fit enough to return to work, the question of a possible return had to remain open, especially if anxiety about this case was a major issue in relation to his health.
- The Panel then considered the principles derived from Jones and Adeogba, noting in particular that, [19] "It would run entirely counter to the protection, promotion and maintenance of health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process." It accepted that since his collapse in December 2013, Dr Lovett's health "has clearly compromised his ability to engage fully with these proceedings, it does not accept that it has always precluded him from any constructive engagement." It had always been clear that, by then, "the hearing had reached the stage where his inability to attend in person did not preclude further progress. Every effort was made to facilitate his further participation in whatever ways may be possible. Despite these efforts there has never been any constructive engagement by Dr Lovett. Throughout, Dr Lovett has used the significant resources available to him not to engage but to avoid engagement." He was of course entitled to do that but had to accept the consequences of doing so. "Rather than take the opportunities he had had over several years to engage constructively in the process, Dr Lovett has chosen to use his legal teams time and again in applications to defer and finally to stay the proceedings." Even after he had been partially successful in applications to stay some allegations, he had not addressed the matters requiring his engagement. Although he had now lost whatever capacity he had to engage in this process in any way, in all the circumstances, the Panel concluded "that, notwithstanding his ill-health, Dr Lovett has deliberately failed to engage in this hearing."
- The fairness of the proceedings had to be judged by considering the entirety of the process and not a snapshot as to the present. Despite his current incapacity, the Panel considered that there had not been nor would be any compromise of Dr Lovett's "unequivocal right to a fair hearing should the proceedings continue."
- The Panel then rejected in [28] the application that particulars 7 and 8 should be stayed. The terms of its rejection are relevant to a number of Mr Grant's submissions:
"This application is based on the contention that the HCPC case that Dr. Lovett made the relevant statements to the GPs knowing them to be false will require the Panel to consider why Dr. Lovett would deliberately make statements he knew to be false to prevent disclosure of his records. The Panel does not accept that contention. The HCPC case has not been put on the basis that any false statements were made to prevent disclosure, in order to conceal any irregularities in the invoicing. It has been implied that there could have been such a motive but in the absence of any further consideration of the invoicing issues that can amount to no more than speculation. If it is proved that Dr. Lovett made the relevant statements to the GPs knowing them to be incorrect the Panel does not accept that the only plausible reason for that would be to prevent disclosure of any invoicing irregularities. There could be a number of reasons behind such conduct. The consideration of the word "false" in relation to particulars 7 and 8 cannot rely on the evidence adduced to support particulars 1, 2(c), 3 and 5(n) as those particulars have been stayed and it would clearly be inappropriate and unfair to rely on those matters as possible motivation. The evidence to support particulars 7 and 8, as drafted, must be examined discretely and that can be done without any unfairness to Dr. Lovett."
- The period between 2 February and 4 April was not without further incident. On 20 February 2017, Mrs Lovett sought an injunction in the Court of Protection to restrain the HCPC from continuing with the proceedings; this was refused on 15 March 2017. On 23 February 2017 Dr. Lovett's solicitors notified the HCPC's solicitors that Dr Lovett had brought an action against the HCPC for personal injuries he sustained during the hearing, which they argued meant that the Panel had to recuse itself immediately, and sought confirmation that the Panel would do so. The information was not passed to the Panel. On 3 March 2017, when the decision on the facts was sent to the parties, Dr Lovett's solicitors ceased temporarily to be instructed. On 21 March 2017, reinstated, Dr Lovett's solicitor's objected to the Panel's Legal Assessor on the grounds that he had no practising certificate; he recused himself to avoid further delay. On 3 April, the entire legal team was dismissed, and Mrs Lovett in person applied for the Panel to recuse itself on the grounds of the conflict of interest arising out of the personal injury claim. It rejected this, and her application for an adjournment to find another legal team. She refused to address the Panel on impairment and sanction. The Panel then reached the conclusions set out in its Final Decision of 4 April 2017.
- I also note that Dr. Lovett had been able to make a witness statement dated 13 March 2017 for the purposes of his personal injury action against the Panel.
Particulars 6-8 and the case considered by the Panel
- The structure of the Panel's decision is as one written to the informed reader familiar with the case. It therefore assumes a reader familiar with the facts involved in the refusals or conditional offers to disclose the medical records, and possessed of an understanding of what was contentious, and why, about the reasons given by Dr Lovett for his conduct. The decision also assumes that the reader is familiar with and understands the evidence about whether the formulations, which turned out to be the contentious documents, were soundly based or un-soundly based, or fabricated. It also assumes that the reader could understand the basic structure of the way the case was put and developed, from reading particulars 6-8 themselves. That may be justified in the case of the reader who is familiar with the full development of the case, but it is not helpful to those who are not so advantaged; these will include the public whose confidence in the regulatory process was to be sustained by this decision.
- It also unfortunately means that I have to set out the relevant documents, and the evolution of the case in order for Mr Grant's submissions about the decision to make sense. There is nothing otherwise which sets out what the case was about. This I now turn to do.
- After the relationship between Dr Lovett, and A and B, broke down in 2009, A wrote to Dr Lovett and others alleging that Dr Lovett had charged her for sessions which had not taken place; B alleged that he had claimed travel expenses which he had not incurred. Dr Lovett provided a detailed explanation, including to DAC, solicitors by now acting in the personal injury claim for A and B. In July 2010, Mr Collins of DAC asked for their medical records from Dr Lovett who replied on 2 August that he would be pleased to provide all their clinical notes "following receipt of their individual outstanding payments for psychological services provided." This was seen by the HCPC as a failure to provide the records because Dr Lovett was permitted no professional lien over such records, and could only charge a small fee relating to the cost of their actual provision. Further letters from Dr Lovett of 11 October 2010 explained the position in relation to some of the invoices, and what was outstanding.
- In November 2010, B made the initial complaint to the HCPC. It related to alleged charging for sessions which had not occurred and for travel expenses not incurred. In March 2011, shortly after the HCPC sent Dr. Lovett an outline of the complaint, a letter from Mr Collins said that the travel expense issue appeared to be resolved subject to verifying that appointments had taken place on the days in question. This responded to a letter from Dr Lovett in which he complained that Mr Collins had told Dr Lovett's office that the reason Dr Lovett's invoices had not been paid was concern about double charging for travel expenses. As Ms Richards pointed out, this reason and the psychological reasons sit ill together. B's complaint was withdrawn in August 2011, but A made one at around that time. B asked for her complaint to be reinstated in December 2011.
- However, in July 2011 Mr Collins made a subject access request on behalf of A and B, for the medical records, and complained to the Information Commissioner's Office when they were not provided. Dr Lovett raised a number of issues in one of his replies of 8 October 2011, based on the fact that the records were seemingly sought by Mr Collins for the purpose of the personal injury litigation, in which Dr Lovett saw conflicts of interest between A and B, referred to problems in the way of A's claim, and the absence of explanation as to why the records were sought. He made a number of expressions of concern about patient confidentiality. But in further letters of that same date, one in respect of A and another in respect of B but in the same terms, Dr Lovett said that his treatment of each had come to a sudden conclusion, with issues that he had been exploring with each that remained unaddressed. In particular, his clinical records contained information regarding the potential diagnosis of each which he had yet to discuss with and explain to each of them:
"I do not believe that it would be in [A's] best interests for her to be provided with this information by simply reading this information in her clinical records. I believe that this could cause serious risk of harm, distress, denial, and anger. I am concerned that she will not accept the diagnosis if the information is presented this way and that this will negatively impact on her ability to address the condition."
He relied upon the exemption from disclosure in Article 5 (1) of the Data Protection (Subject Access Modification) (Health) Order 2000. This does indeed provide for an exemption where the personal data would be likely to cause serious harm to the physical or mental health or condition of the data subject or any other person.
- Dr Lovett added however that he would be prepared to provide the clinical records "to a suitable healthcare professional who could work through the content of them with [A] before she gains direct access to them."
- The ICO accepted Dr Lovett's position in its determination of 17 October 2011, saying that the ICO was not in a position to challenge his use of the exemption but were obliged, at this stage, to trust his judgment, and accordingly find that he had not breached the Data Protection Act. A complaint against this decision by B was dismissed by the Commissioner in March 2012.
- Next it was the GPs who wrote to Dr Lovett seeking the medical records. On 25 October 2011, A's GP, wrote to Dr Lovett seeking his notes and on 3 November, B's GP did likewise. Dr Lovett responded to both in letters of 14 November 2011 which were in essentially the same terms. I quote first from the letter to B's GP from Dr. Lovett:
"There is a considerable history to [B's] psychological profile and the manifestation of her difficulties and wider family dynamics, together with significant confidentiality issues. Because of the manner in which she ended her treatment I was unable to work through my clinical formulation concerning her underlying psychological problems.
[He referred to B knowingly making false allegations to the HCPC about overcharging and travel expenses and other complaints which she had withdrawn only to make a complaint about his withholding her medical records] …
The ICO then carried out an investigation and did not uphold [B's] complaint, fully accepting my professional and clinical exclusions and concerns (please find a copy of the ICO's decision enclosed). You will see from this that the ICO are indicating that I need not take any further action here, but I did offer a potential compromise.
This compromise will require [B's] full co-operation and in view of the litigious nature of complaints she has made about me and also about numerous other professionals previously, I am concerned that as healthcare professionals, [B's] difficulties remain centre stage and she, her family and any healthcare professionals who may become involved to work through issues relating to her underlying psychological problems are not placed in the position I have been over the past two years.
With the above points in mind finding the appropriate and safest way forwards will need some careful consideration. It is my opinion that in order to move matters forward I will initially need to liaise with an experienced and skilled clinical psychologist in your area in order that a hand over and proper management of my notes can be considered, worked through with [B], before any consideration is given to these being either passed to her or contained within any general medical files, in order to ensure all safeguarding issues are firmly in place prior to the commencement of this process.
On a final point [B] does still owe me money for treatment sessions I provided to her, which were fully funded through interim payments from the third party insurers in her personal injury claim and therefore not something she had to pay for herself. However, I have not pressurised her in any way for this payment, but I do consider that this is also something that needs to be addressed in order to fully conclude matters."
- However, as the particulars relating to A are a little different, I quote the passages from Dr Lovett's letter to her GP, on which the particulars are based. After dealing with complaints that [A] had previously made, which Dr Lovett said had been fully investigated and not upheld, and with her continuing "unsubstantiated complaints", he said this:
"Whilst the above is only a very brief description of the inherent problems encountered with [A], it is my opinion that they are consistent with her underlying psychological problems and wider family dynamics. Because of the manner in which she ended her treatment I was unable to work through my clinical formulation of her underlying psychological problems with her. It is my opinion that there are numerous safety issues surrounding [A's] psychopathology to herself and others under her care and that of any future healthcare professionals who may become involved in attempting to provide assistance."
[Dr Lovett added, after referring to the ICO as in his letter to [B], references to [A's] father's adverse personal response to him]:
"With respect to the above points and given that there remains an ongoing complaint about me from [A] to the HPC, there continues to exist a substantial confidentiality issues [sic] arising in this matter and I am concerned that these do not impede the safe disclosure of essential clinically relevant information and an appropriate clinical handover.
Furthermore, given the complexities of psychopathology [A's] it will be absolutely necessary for a professional multidisciplinary team approach, headed by a senior clinical psychologist, to ensure that all safety concerns are fully met and applied in this case. In addition, it is also my opinion that in order to move matters forward, I will initially need to liaise with the nominated clinical psychologist in your area in the first instance in order that a handover and proper management of my notes can be considered, then work through with [A], before any consideration is given to these being either passed to her, or contained within any general medical files.
Thank you for your offer to help in this case. I consider your involvement essential in this process, which was complicated, can be moved forwards in a safe and appropriate manner within a clinically oriented approach."
- A's GP replied on 24 November 2011 expressing surprise that he should not be regarded as a suitable healthcare professional by Dr Lovett. He was concerned about the issues raised in the first paragraph quoted above, questioning why he had not been notified for appropriate referral or indeed whether Children's Services should be notified if a child might be at risk. He asked for evidence relating to safety issues. He could find no evidence of any mental health problems and neither [A] nor he could see any need for reference to a multidisciplinary team headed by a senior clinical psychologist. After a further interchange, the GP said in a letter of 5 January 2012 that he was still unclear as to whether and why Dr Lovett thought a referral to a mental health professional was necessary, and sought a full clinical report and clarification of the safety issues; he himself could make no referral because he did not have the necessary clinical information in the absence of the records he was seeking. He was confident that there was no current medical need for [A] to be referred for psychological services but Dr Lovett's comments were causing concern to [A].
- B's GP also asked, by letter of 26 January 2012, for further information in strict confidence about what Dr Lovett had described as [B's] "underlying psychological problems". She would do all she could to provide support to [B] if she thought undue stress would be caused.
- By letter of 5 April 2012, misdated as 2011, Dr Lovett sent some of the notes headed "[B's] records" to her GP. He wrote this:
"I draw your attention to the section headed "Formulation". I am sure you understand my concern of the impact that these entries might have on [B] if you were to simply receive this material without any support or explanation. Whilst it is important that clients come to appreciate the nature of their problems, this needs to be handled in a controlled and therapeutic fashion."
Although he had had in mind providing them to a suitable specialist:
"this matter has now become highly litigious and I am coming under ever-increasing pressure to release the records forthwith. Hence I'm now providing them to you."
He hoped that she would take an appropriate view as to whether a specialist needed to be involved in dealing with the issues and in particular "the formulation section".
- I do not have the letter or date when B's records were partially disclosed, again including however the "formulation." Nor is it in the Appellant's chronology, but it was about the same time and in the same terms. He said in evidence in chief that he had disclosed them as he did because of advice from his legal representatives. He had never had an issue over disclosure to A and B, but only with C. Ms Foster asked why they had been disclosed without the safeguards and protections he had earlier thought necessary; he said that it had been a dilemma with the GPs, who had been told that there were issues, and were saying they were capable of dealing with them, which he rather doubted.
- Dr. Lovett did not disclose at that time other parts of his records, schematics and questionnaires, which later were said to support the formulation. They were disclosed later.
- The "formulations" were in these terms:
(i) in respect of B
"- Very traumatised by index incident.
- Sustained serious injury, [B's daughter] almost died (lost a leg) and mum did die – her family so impacted – moved home when well established with very good friendship network.
Life is almost always in chaos & B is distracted and often hysterical.
By contrast A is much calmer.
Never talks about panic attacks in any detail and no one telephones if she's needed to go into hospital?
Again, this is trauma induced by PD.
Both B and A can be pushy at times and do not take responsibility for their actions – they blame everyone else.
(ii) in respect of A
"- The trauma of the index accident has created considerable instability for A and I suspect she has had a great need to control the situation. Her sessions have been very controlled on the one hand and distracted on to others problems.
Both her and B seem to find it hard to process certain information at certain times and blame others for problems which, unfortunately, they create – (major problem).
Overall, primary problem here is most likely personality disorder brought on by trauma – or at least made these problems manifest again.
- The link between Autistic Spectrum Disorder and Narcissistic P.D has always been suggested and the high precedence of P.D in identical twins is one if one twin has problems well known.
- NPD explains A's control issues very well and her semi acceptance of support but often projecting that on to B or usually C is I only need help because of them, not me.
- Such a diagnosis explains why so many staff seem to have caused so many problems.
- NPD."
- (NPD is Narcissistic Personality Disorder).
- The HCPC case was opened before the Panel on the basis that particulars 6, 7 and 8 involved an allegation that Dr Lovett had failed timeously, without good reason, to provide his medical notes, and had provided false or unjustified statements to other medical practitioners: "so this is about the underlying psychological condition that the witnesses may or may not have, raised as a concern not to provide the medical notes…[which all] fall under the heading…of poor, inappropriate, inaccurate, dishonest (in some respects) communication." Later in her opening, Ms Norris said that the HCPC case was that Dr Lovett's arguments for his failing to provide notes to A and B were "either false, so his suggestion that there is underlying psychopathology, which means that the witnesses were risks to themselves or others, is simply false, not based upon his own true findings or upon a genuinely held belief by him or, alternatively, was not objectively justifiable. In simple terms the decision was wrong."
- A and B were cross-examined by Ms Foster, who challenged their credibility in various ways, by reference to threats of a campaign against Dr Lovett, and to aspects of the session notes which Dr Lovett had made, and which might have been relied on to justify his "formulations". She also suggested to A and B that they were accusing Dr Lovett of lying to keep their medical records away from them, when in fact he had formed a view of their psychological condition which required care. I observe, as I imagine must have been plain to all, that there was little direct evidential value in cross examination along those lines of A or B, since they could not really speak to what Dr Lovett had in mind, though it may serve tactical purposes. But nonetheless, as Ms Richards submitted, it illustrates that there was no doubt on the part of his team about how particulars 6 to 8 were linked, and that Dr Lovett knew that he was accused of knowingly making a false record in the formulations.
- Dr Halari, a Senior Clinical Psychologist, gave expert evidence for the HCPC. I have to deal with the psychology evidence in some detail later in relation to one of Mr Grant's main submissions about the distinction between diagnosis and formulation. Shortly before Dr Halari gave her evidence, she provided a supplementary statement saying that she could identify no evidence to suggest that Dr Lovett's formulations were correct or to support the formulations of Personality Disorders. She had not heard or read the evidence of A or B.
- Professor Powell, the Clinical Psychologist and Consultant Clinical Neuropsychologist instructed on behalf of Dr Lovett, prepared a report but did not in fact give oral evidence. The Panel later accepted his report where it was in disagreement with Dr Halari's, but, as their joint statement made clear, the two experts could identify no disagreement on matters of significant principle.
- The joint statement commented: "… It has become clear to us that the issue now is whether Dr Lovett is able to explain various matters to the Panel, i.e. whether Dr Lovett is able to give a coherent and acceptable narrative based on his aides memoire, whether Dr Lovett is able to explain satisfactorily the nature of his goals, inputs, decisions and statements and so forth." They wanted to share their impression, which they accepted could be mistaken, that treatment "did not really get off the ground." Dr Lovett's ideas seem to move on over time "and he had to reformulate his understanding of the clinical presentation in a major way so as to take into account what he saw as significant pre-incident personality factors." The relationship broke down before the goals could be substantially revised or the revision documented. This impression would be for Dr Lovett to talk about.
- On the day following the conclusion of Dr Halari's cross-examination, Ms Foster made her submissions as to why there was no case to answer. Particulars 7 and 8 were "nonsense", in so far as they alleged falsity, in the light of the medical records which had been disclosed from other medical professionals dealing with A and B, (though not available to Dr. Lovett when he said he had prepared his formulations). The allegations were no more than allegations of clinical negligence. As particulars 7 and 8 were not among those in respect of which dishonesty was alleged, dishonesty was not to be implied into them either; it was for the HCPC to show that Dr Lovett had no honest belief in the representations he made in the letters, yet there was no evidence of any dishonest motive, as to why he might have lied when writing to the GPs, nor was there any logical reason why he might have done so. The inference originally was that he lied to avoid disclosure of his notes, but it made no sense that Dr Lovett wanted to keep his notes from the complainants, except for the given reason that sight of the formulations could cause them harm, as indeed they did. The inference that he lied to avoid showing inconsistencies between invoices and session notes failed because, apart from errors admitted long before disclosure of notes, his notes were entirely consistent with his invoices.
- Ms Norris submitted that "false" in particulars 7 and 8 should be given its plain and ordinary meaning, which was contrary to fact or truth; conduct could be knowingly false whilst not being dishonest. The allegation of failing to provide the medical notes to the respective GPs, necessarily incorporated the notion that there was a duty to provide them in the absence of good reason or lawful authority which, once raised, was for the HCPC to disprove. A and B had originally wanted them to check the invoices, for which purpose they were refused until outstanding fees were paid; then the exemption was claimed before the ICO. When the allegations were referred to the HCPC Investigating Committee, Dr Lovett had been content to disclose his notes. But, if genuine, the concerns would still have existed, and he could have redacted or removed the formulations. She then dealt with possible motives. Dr Lovett appeared to have reacted badly when the relationship broke down, and failed to provide the notes for one of a number of reasons: "(a) He was cross. In his view he had done an awful lot for these witnesses… And this was how they were repaying him. So it is punitive; b) He knew his notes contained very little by way of detail as to aims, goals, treatment provided. He knew they would be scrutinised; and c) tremendously important… He knew that having cited those exemptions, based on the formulations, that his notes may well be scrutinised for evidence to support those formulations, as we are doing now, and those notes do not contain sufficient evidence to support the formulation advanced." She then set out 11 aspects in relation to A and then B as to why the statements were unjustified and false; the eleventh of which, in each case was that A and B considered them to be unjustified or false; not, she accepted, her best point.
- The Panel returned the next day to find that there was a case to answer in respect of the particulars with which this appeal is concerned. The only aspect of its decision which I need to mention is that it held that particulars 7 and 8 could be proved either by showing that Dr Lovett knew the statements to be false, or that there was inadequate objective justification for them.
- I observe that there was no contention by Ms Foster that, in any of the respects in which Mr Grant was critical of the particulars, there had been any uncertainty over what the particulars actually meant in the circumstances of this case in such a way as to prejudice the preparation of Dr Lovett's evidence or the cross-examination of any witness.
- Dr. Lovett then made admissions in relation to certain particulars. These related to invoices for sessions which were either cancelled late, or wrongly raised for reasons which did not take place or lacked particularity. He also admitted that his pattern of invoicing for A and B amounted to misconduct because it had "the capacity to cause confusion and distress" to them and in fact had done so.
- As I have said, Dr Lovett was then taken extensively in chief through the evidence he wished to give about all the documents which might support his formulations, when and why he reached the views that he did, how he saw the notes and his formulations, and why he did not disclose them on request. He said that his views were genuine. He gave that evidence in the clear knowledge that it was being alleged that the formulations were false, knowingly false, and with some particularisation as to how the evidence supported that contention. He was cross-examined about the basis for his formulation for B and many other matters.
- I have already dealt with the further course of proceedings. The HCPC set out its case in some detail in writing with specific reference to many passages in the oral evidence. This included its detailed reasons which showed the formulation to be baseless and therefore fabricated with the aim of preventing disclosure of the medical records. These submissions had been written in November 2014, and Dr. Lovett's team had had them since then. They were updated in 2016.
- In his closing written and oral submissions, Mr Horne made strong submissions about the quality of the evidence of A and B: unreliable, dishonest and vindictive; he supported those submissions with many detailed points from the evidence about their conduct so as to contend that their evidence could not properly be accepted where it differed from Dr Lovett's. I do not need to go through them in any greater detail, though a number of them are quite troubling. They are not of real significance because the evidence, as to whether the reason given by Dr Lovett for not disclosing his notes to the GPs when asked is true or false, does not depend upon the evidence of A and B to any real extent, nor does it add significantly to the material otherwise considered with which Dr Lovett could support, contemporaneously or otherwise, the views in his formulations. He submitted, as the Panel had said it would do, that it should accept the evidence of Professor Powell wherever it differed from Dr Halari's.
- Mr Horne also pointed out that by the time the 14 November 2011 letters were written, Dr Lovett was not refusing to disclose the records. He made disclosure of the session notes and formulations voluntarily to the Investigating Committee before any notes were sent to the GPs. The allegation in particular 6 could only be proven, if the formulations were fabricated as a device to resist disclosure of Dr Lovett's records. The experts' joint statement on the evidence of Professor Powell showed that, if the session notes did not contain the explanations for his thinking in the formulations, that did not mean there was no justification in view of the aide memoire nature of the notes. Dr Lovett's view of the formulations was in line with the agreed opinion of Professor Powell; it was an ongoing process, dynamic and evolving.
- Mr Horne then set out in his various submissions the various factors supportive of the formulation in respect of A. He made specific reference to a contemporaneous note of a telephone conversation between Dr Lovett and Ms Kennedy on 29 October 2008 in which Dr Lovett recorded that he had explained to her that both A and B "present more like PD's and that extreme trauma can make underlying personality issues re-emerge - even when under the surface for years… The general description she was giving made me think immediately that in fact there could be some personality traits that were operating." Later, he noted in respect of B "concerns of a personality problem". Mr Horne explicitly made the point that this record was wholly inconsistent with the HCPC case that the formulation for A was made long after A's last consultation with Dr Lovett. Mr Horne submitted that the upshot of Dr Halari's evidence was that the HCPC had no expert support for its proposition that the formulation in respect of A was unjustified still less fabricated.
- Mr Horne submitted that fabrication of A's formulations by Dr Lovett was utterly implausible. He was a man of good character and unblemished career. It was unclear how far the allegation of fabrication and the records went: whether it covered specific schematic diagrams and related charts, and whether it was said that all of the notes were fabricated. It was absurd to suggest that he had a motive strong enough for withholding his notes sufficient to cause an honest man to fabricate documents. Mr Horne went through the possible motives including the suggestion that they could not be disclosed because they would not support Dr. Lovett's invoices: he had never unequivocally refused to disclose the records, but had placed conditions on them; he must have expected serial complainers such as A and B to challenge any withholding, and his records, apart from two invoicing errors, were entirely consistent with his invoices.
- He then tackled B's formulation in much the same way, setting out the factors in the evidence identified by Dr Lovett in support of his conclusions. The 20 October 2008 note of the telephone conversation with Ms Kennedy was also relevant to B. Although there were additional aspects in each case, the essential features justifying Dr Lovett's conduct in relation to disclosure of the medical records, were those which Mr Horne contended showed the statements referred to in particulars 7 and 8 to be neither false nor objectively unjustified. He pointed to the behaviour of A and B as justifying concerns if they did not have appropriate support when seeing the records.
- Mr Horne outlined the issues which re-examination would have covered, but for Dr. Lovett's lack of capacity, including how he arrived at his formulations, why he disclosed clinical material at various times, why they had been provided despite his safety concerns, whether the absence of the schematics was deliberate, and whether his physical condition had affected his last two days of evidence.
- Turning to his oral submissions, Mr Horne particularly emphasised the absence of a motive being advanced, other than by speculation, for the deliberate falsity of the formulation. He submitted that the HCPC had now abandoned the assertion that the medical records had been withheld because Dr Lovett knew they would not support his invoices. This had survived as at least a speculative possibility in view of [28] of the Panel Determination on 2 February 2017 that proceedings should continue. He submitted that a major problem for the HCPC's speculative motives was that Dr Lovett had not in fact refused disclosure, but had imposed conditions relating to the supportive circumstances in which they were to be received by the patients. It was wholly implausible that the records would be fabricated so as to provide an excuse for withholding them for the relatively small amounts of money owed to Dr Lovett, £360 in the case of A. B's invoices were paid by AXA. It had been put to Dr Lovett that he had withheld the records because he was angered in 2010 by Mr Collins, but it was not suggested that he remained angry at all times since and that that was his motivation for fabrication. Mr Horne also emphasised the significance of the 20 October 2008 note of the telephone conversation with Ms Kennedy.
- Ms Norris's submissions, which Dr. Lovett had had in their essentials since 2014, explained with detailed references to Dr. Lovett's own evidence why the formulations were false. Ms Norris also submitted orally, dealing with the absence of re-examination, that the defence had always known that the HCPC case was that the formulations were a fabrication. Dr. Lovett's legal team had raised extensively in chief a very considerable array of questions to counter just that attack.
The Panel's Final Decision, FD
- The Panel found particulars 9(c), 10 and 11 not proved; so the facts were found against Dr Lovett only in respect of particulars 6, 7 and 8 of those he faced at the outset. But if it were not apparent at the outset, it certainly became clear that those were the most serious. In the light of the detailed arguments, and the detailed nature of the decision, I see no sensible way of summarising the material parts of it, beyond saying that for full and careful reasons the Panel rejected the truthfulness of the evidence of Dr Lovett. I have set out the material parts in the Appendix to this judgment.
The role of this Court
- Mr Grant emphasised that this was an appeal by way of rehearing, but his submissions did not fully reflect the limits on such an appellate hearing.
- The principles upon which the Court will act can be found in a number of authorities. Sharp LJ in GMC v Jagjivan and PSA [2017] EWCH 1247 (Admin), so far as material, said at [40]:
"(i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR part 52. A court will allow an appeal under CPR part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(ii) It is not appropriate to add any qualification to the test in CPR 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.""
- In Adeogba v General Medical Council [2016] 1 WLR 3876 at [24], the Court of Appeal explained, by reference to the Practice Direction to Part 52:
"This [as an appeal by way of rehearing] does not, however, mean that the court will hear the case afresh. In Threlfall v General Optical Council [2005] Lloyd's Rep Med 250, para 20, Stanley Burnton J put it this way: 'In other words, the appeal court does not normally hear evidence afresh, but considers the appeal on the basis of the record of the evidence in the court below'.
- In Professional Standards Authority v Health and Care Professions Council and Doree [2017] EWCA Civ 319 at [5]-[6] the Court of Appeal observed:
"5. The relevant principles of law are well established. When a registrant appeals to the High Court against a decision of the Council, the court's function is to determine whether the Council's decision was wrong. In General Medical Council v Meadow [2007 QB 462, Auld L.J. (in paragraph 197 of his judgment with which Sir Anthony Clark M.R. and Thorpe L.J. agreed) identified three factors which the court must have in mind and give appropriate weight: first that "[the] body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect", second, that "[the]" tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides", and third, that "[the]" questions of primary and secondary fact and the overall value judgment to be made by a tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
- In Southall v General Medical Council [2010] EWCA Civ 407 at [47], the Court of Appeal held that:
"As a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable."
- I underline that by reference to Chen v Ng (British Virgin Islands) [2017] UKPC 27, in which at [49], the Board referred to recent guidance given by the Board and the Supreme Court on the role of an appellate court when deciding whether to interfere with a judge's conclusion on a disputed issue of fact on which the judge has heard oral evidence. Both applied what Lord Thankerton had said in Thomas v Thomas [1947] AC 484 at 487-488:
"(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; (2) The appellate court may take the view that, without having seen or hear the witnesses, it is not in the position to come to any satisfactory conclusion on the printed evidence; (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."
The first main issue: the treatment of the psychology evidence
- Mr Grant made five points under this main heading, for which he took me to a great deal of the psychological evidence. First, the Panel had conflated the two quite distinct concepts of diagnosis and formulation, and had concluded that Dr Lovett's formulations were false, as lacking evidential support, by applying to them the more demanding requirements of a diagnosis. This, he said, was of real concern to psychologists generally. Second, the Panel and Ms Norris for the HCPC had wrongly sought to confine the justification for the formulations to the session notes or other contemporaneous material from Dr Lovett's medical records. Third, the Panel had substituted its own clinical opinion of A and B for that of Dr Lovett. Fourth, the Panel had conflated fact and opinion in relation to the safety of the disclosure of the records to A and B and their GPs. Fifth, there was sufficient evidence to substantiate Dr Lovett's formulations. I deal now with the evidence related to the first three points.
- Dr Halari's report described Dr Lovett's session notes as aides-memoire. She did not think it reasonable for him to have claimed the Data Protection Act exemption to disclosing his medical notes either to A or B. The notes were presented "in a brief format with little elaboration on the main points of discussion from the sessions." The "formulations" did not warrant the exemption either. If notes were to be withheld, an explanation should be offered to the patient, whose GP should be told, with the reasons why clearly explained.
- Dr. Halari explained in her report that a "clinical formulation" summarised the patient's core presenting problems, and how the patient's difficulties might relate to one another, by drawing upon psychological theories and principles. It aimed to explain the development and maintenance of the patient's difficulties. A formulation was open to revision and reformulation. It was based on a range of procedures such as psychometric tests, risk assessment and structured interviewing, along with gathering information from others such as relatives, other professionals and from observation. It was considered an alternative approach to the more categorical approach of diagnosis. "In practice, formulations are used to communicate a hypothesis and provide an appropriate framework to developing the most suitable psychological intervention."
- She thought that Dr Lovett should have shared his clinical formulations with his patients as soon as he had developed an initial understanding of their presenting difficulties and formulated it in the context of their experiences, triggers, and factors that might maintain their anxiety or coping ability. Failure to do so would fall below the standards of a reasonably competent psychologist. She believed it to be good practice for an initial formulation to be discussed after a couple of sessions if appropriate, and for a diagnosis of NPD, and the reasons underlying it, to be discussed with the patient. But a formulation could not always be arrived at after a few sessions; it was an ongoing and collaborative process.
- I have already referred to her evidence that she could find no evidence to suggest that Dr. Lovett's formulations were correct or to support the formulations of personality disorders.
- Much of what Professor Powell wrote in his report for Dr. Lovett was a commentary on Dr Halari's report. "Good Practice Guidelines on the Use of Psychological Formulation" of December 2011 recognised that formulation could be both a tool and a process; formulations did not have to be written nor were the guidelines prescriptive as to how the formulation was shared collaboratively with the client; discussion could take place without use of technical terms such as NPD. (Mr Grant took me to rather more of the Guidelines than Professor Powell had done in his evidence for the Panel, but not to any greater point.) Professor Powell pointed out that some psychological therapists saw the arrival "at a formulation is almost the end of therapy", aimed at an exploration sufficient to understand the clinical presentation. The use of session notes as an aide-memoire was entirely appropriate; written aims/goals were not mandatory and might only emerge over time as the formulation was clarified. No detailed narrative was required. He did not disagree that it was unreasonable to refuse to disclose the notes; but he could not say whether it was reasonable to refuse to disclose them directly to the clients, because he had never met them. It would be for Dr Lovett to explain why he would only release them under supervised circumstances:
"That was Dr Lovett's professional view, and it is for the Panel to decide a) whether it was his genuine professional view and b) whether they have sufficient evidence to say that his view was wrong." A wrong view was not necessarily misconduct or incompetence. He would expect a psychologist to err on the side of caution, "and ensure that notes are only released under what are seen as safe circumstances which is what Dr Lovett did."
Professor Powell commented on Dr Halari's view that the notes provided no evidence of underlying problems of safety issues:
"However, Dr Halari does point to the indication of uncontrollable anxiety and considerable instability and Narcissistic Personality Disorder, so Dr Halari accepts that evidence to support Dr Lovett's statements are not "clear" rather than absent. I have not met the clients myself so cannot pass comment on the vulnerability. Dr Lovett did form the professional view that there were vulnerabilities, as expressed in his communications about the release of records."
- It was not unreasonable for Dr Lovett to include the statements he did in a letter to the GP, contrary to Dr Halari's view, because it was commonplace for professionals to describe a diagnosis without going into all the details of how it was derived.
- In conclusion, "Dr Lovett had exercised his professional judgment as to how problems should be explored, discussed and treated and the extent to which the GP need be involved. I have seen no evidence that his judgment was flawed." He was of the like view in relation to the exercise by Dr Lovett of his professional judgment as to the circumstances in which the records should be released.
- The two psychologist experts agreed in their joint statement, that Dr Lovett's records were of the "aide memoire type", written with no expectation that they would be required for any other use. There was no "absolute requirement for all records a) to be a full narrative of events, or b) to give a full justification of differential diagnosis, actions, decisions and so forth…." I have already referred to their agreement that the issue was whether Dr. Lovett could explain satisfactorily various matters, including obviously the basis for his formulations. So they presented that issue as one for the Panel to judge based on Dr. Lovett's evidence, rather than the justification for the formulations being an issue for their expertise. They also referred to their impression that Dr. Lovett had "had to reformulate his understanding of the clinical presentation in a major way so as to take into account what he saw as significant pre-incident personality factors."
- In chief, Dr Halari corrected herself about her use of the word "diagnose"; that was not what psychologists usually did, as opposed to gathering evidence from sessions which would inform them of traits which might meet the criteria of a personality disorder.
- I was asked to and have read her cross-examination in full. Mr Grant referred me to 56 points which emerged from it, which he submitted meant that particulars 6-8 could not be found proven. I mention, by reference to Mr Horne's submissions, those which Mr Grant said were his strongest points. But one overall difficulty emerged to my mind: the questions on behalf of Dr. Lovett had had to tread a difficult line between suggesting that the session notes need not provide some basis for the conclusions in the formulations, and suggesting what the basis for the formulations was, if not to be found in them. This became more obvious during Dr. Lovett's own cross-examination.
- Dr Halari agreed that contemporaneous aide-memoire notes would not necessarily record conclusions about disorders and symptoms, formulations and treatment. She accepted that she could not comment on whether the formulations were correct or not because she had seen neither client, nor on whether the formulations were totally outside the range of what was reasonable. It would be difficult to address formulations and goals with a patient who was resistant to the notion that she had any kind of psychological problems at all, and it would take time to build up trust to enable that to be done. Whilst she could see nothing to support the formulation of NPD, she could see no evidence positively contradicting it. It would not be unreasonable to reach a provisional formulation that a traumatic incident had uncovered or contributed to an underlying personality disorder, but which personality disorder and why would need to be specified.
- A number of incidents were put to her in support of the formulations, and later by reference to the diagnostic criteria for NPD, to which I was also taken. Her answers were to the effect that, although one way of looking at it could be a personality disorder, she would expect something consistently apparent in personality or behaviour from adolescence onward; isolated incidents alone could not suffice. It would not be unreasonable however to record such impressions in a working formulation. But she accepted that "it is very difficult for me to confidently give an opinion without seeing the client". In those circumstances, she agreed that Dr Lovett's own views should be treated as quite significant. There was an expression of concern received by Dr Lovett that A represented a safety concern to professional staff working with C, which meant that it could not have been unreasonable for Dr Lovett to have referred to safety issues when writing to her GP. Dr Halari also accepted that the reaction of A and B to the disclosed notes showed Dr Lovett's concern, that they be released only to psychologists of appropriate standing, to be a reasonable position.
- Mr Grant was also critical of the psychologist Panel member's questions of Dr Halari. Dr Cohen, he submitted, focused on the question of diagnosis and how information might or might not justify a diagnosis of NPD, or in other places had used the terms "diagnosis" and "formulation" interchangeably when they were quite different concepts. Dr Halari accepted that there were some personality traits in relation to B, but it was very difficult from the reports to say whether some of the traits were evidence of a personality disorder; for that they needed to be pervasive and enduring; if the symptoms had related to functional impairments before the tragic event they might well go towards a diagnosis of the borderline type personality disorder. She would have expected formulations in relation to problems "as serious and pervasive" as Dr Lovett suggested, to have been in some sensitive way actually shared with B. Mr Grant also criticised the Chair's questions for talking of a "reliable formulation", because it failed to recognise the dynamic concept of a formulation. The Panel gave Counsel the chance to ask further questions after their questions, which Counsel for Dr Lovett took.
- Dr Lovett gave very full evidence in chief about how and why he reached his formulations. He described B's formulation as a reminder to himself, never actually part of her clinical notes, but once made, its non-disclosure posed an "ethical dilemma". Contrasts with other people would not be appropriate in a "proper clinical note" but were permissible in a note to himself. It was about May or June 2009 that he was coming to his formulations; the elements "began to click around spring and certainly by the June time." A's formulation came first, influenced by what he saw as her unusual response to a newspaper article written by B's husband about the trauma of the death and injuries. A and B were twins. It would not have been possible to tell B because she could tell A, who might react badly without treatment and while pregnant. He also drew on other medical evidence about A and B which their doctors had disclosed for the purposes of the Panel hearing, but which would not have been available when he wrote the "formulations".
- Dr Lovett accepted in cross-examination that his session notes contained no indication as to how he had arrived at the formulation for B that he disclosed; nor did his other contemporaneous clinical notes support the view he had reached. He also agreed that it was helpful to look at the underlying diagnostic criteria in judging what material there might be to support the references to a PD in the formulations. He completely agreed that it was important to be accurate, even if the document were no more than a working formulation because of the distress which it might cause.
(1) Conflation of diagnosis and formulation.
- Mr Grant submitted the issue of formulation versus diagnosis was not properly flagged up until the hearing had begun, and Professor Powell was not able to give evidence about it. Mr Grant submitted that Dr Lovett's legal team had taken the view that it could not take instructions. Professor Powell was never in a position to respond to the Panel's conflation in its questioning of Dr. Halari, of diagnosis and formulation, and to the notion of "a reliable formulation" not least because the Panel ruled that he should give no further evidence. The absence of further evidence was raised tangentially in the application for a permanent stay.
- Dr Lovett's own statement in one paragraph had used the word "diagnosis" five times, where he meant "formulation" according to Mr Grant. Mr Grant explained, without the benefit of evidence, that this error had not been spotted by Dr Lovett or his lawyers. There was no explanation from Dr Lovett about this either in 2013 or subsequently. I see no reason to put any responsibility at the door of his lawyers for the way in which he chose to express himself in relation to his area of expertise. There was no evidence that the lawyers had been asked to comment on that assertion, with waiver of privilege by Dr Lovett as well. It may be that the distinction which Mr Grant drew was not of such great significance, at the time of the hearings, since what mattered was whether there was a basis for the views expressed about personality disorders, regardless of the name by which the document went.
- The contention that the Panel conflated two distinct concepts, diagnosis and formulation, is in substance a contention that they did not understand the case that Dr Lovett was raising, and therefore judged his actions by reference to an inappropriate standard. I have two initial observations. First, this distinction was one which grew during the case, rather than being one observed with rigour by Dr Lovett at the outset. After all, he referred to the formulations as diagnoses in his own witness statement; I have rejected Mr Grant's submission that this was due to oversight by his lawyers. Moreover, as Ms Richards pointed out, the language of the formulations themselves do not appear to draw so rigid a distinction. B's formulation refers to "trauma induced by PD" and "NPD/Borderline/Mixed", both of which are specific references to a personality disorder, and the first reference is a clear statement, not of a possibility but of a personality disorder. It reads with the firmness of diagnosis. A's formulation confirms that: "primary problem here is most likely personality disorder brought on by trauma", the link between autistic spectrum disorder and narcissistic personality disorder is noted, along with "the high precedence of P.D. in identical twins", and "NPD explains A's control issues" culminating in "Such a diagnosis explains why so many staff seem to have caused so many problems" and the laconic but seemingly definite "NPD". The emphasis on the distinction, with the formulations being part of a process of thoughts as yet unresolved, was but part of Dr Lovett's changing response to the limited material contemporaneously identified to support his views. The Panels sets this out clearly in FD [26-30]. The session notes contained nothing supportive of his views. Neither expert identified any specific supportive material, but made it clear that the justification for the views expressed in the formulations would have to come from Dr Lovett himself. One problem for his evidence was the more he diminished their significance, "only to jog his memory" as Mr Grant put it, the more the question arose as to why he did not disclose everything but those "formulations", just flagging up their existence perhaps.
- Second, it is clear that the issue was not what the documents were called but what the basis was for the views expressed in them, which included when they were arrived at, and what significance Dr Lovett had attributed to them at various times. The Panel expressly considered, after describing critically the changes in Dr Lovett's evidence, whether it was Dr Lovett's "genuine professional view that he was justified in not providing his notes to the service users and/or their G.P.s for the reasons he gave." It then set out its several reasons for rejecting his case in FD [31,32,33 and 34]. The Panel's reasoning is not that the formulations were inadequate as diagnoses because the material used to support them was too provisional, incomplete or untested, leaving unresolved the question of whether they might have been sufficient if viewed only as formulations. It was that there was nothing to support them, and that Dr Lovett's explanations for what he had written did not hold water. The FD shows itself alert to the way in which Dr Lovett had put his case. The fact that the FD, see for example [21,22 and 23], uses the terminology, at times seemingly interchangeably, is not inconsistent with the language of the two documents it was considering, and with the case as put forward by Dr Lovett.
- Mr Grant's expressions of concern, that the psychology profession would be alarmed by the Panel's approach to the important distinction between diagnosis and formulation, can be assuaged by a consideration of the language of its decision and its description of the evidence of Dr Lovett with which it had to deal. I reject his suggestion that Dr. Lovett, not being a lawyer, had not focussed on a distinction created by psychologists, and that it was Professor Powell who spotted it first, leading to its more general recognition among the parties. Besides it was the honesty of justification and not its name which matters. The degree of justification was not where he failed.
(2) Wrongly confining the basis of the formulation to session notes and other contemporaneous material.
- Mr Grant was critical of Dr Halari and the Panel's use of the Session Notes as if they were the sole basis for the formulations. This meant that neither appreciated that formulations were a work in progress, with three possible disorders noted, and other sources of impressions could be used, without being written down. There was no need for the notes to have all the details of his observations. Dr Lovett had a unique perspective on the three siblings; he had seen them in their homes, and no therapist had access to more information about them than he did. It was not open to the Panel to draw inferences as to the validity of the formulations from the session notes, when Dr Lovett's contacts were considered in the round: hours at the homes, contact with other service providers, including C's carers who commented on A and B, and with Ms Kennedy.
- Mr Grant was also critical of Ms Norris' cross-examination of Dr Lovett for adopting that same limited approach, and of the Panel for permitting her to adopt such a line. She also tried to confine Dr. Lovett to the contemporaneous material. Indeed, Mr Grant said that her approach was "quite unfair" in the light of the disavowal by both experts of the requirement that the session notes should record the material relied on to substantiate the formulations. Dr. Lovett collapsed before he could be re-examined on the point. This mattered because there were a number of incidents which Dr Lovett relied on in evidence to support his formulations, which on his evidence occurred after he had reached them. He was never given the chance to respond to this in re-examination, because he collapsed. By the time Dr Lovett expressed his views in November 2011 about safeguarding issues arising from an uncontrolled release of the 2009 documents, there was further material to factor in.
- The HCPC was not entitled to go behind the Joint Statement from the experts on what could be inferred from the session notes on their own, as if that were all the material available to Dr Lovett. As Professor Powell gave no further evidence, he was never in a position to respond to this point.
- I do not accept these points. Mr Grant's submission that Ms Norris and the Panel had constrained Dr Lovett's answers in cross-examination to the session notes or other contemporaneous material, is really a submission that the Panel acted unfairly in allowing Ms Norris to constrain the answers in that way. There is nothing in this point. The questions arose in the context of a perfectly sensible passage in which Ms Norris sought to test the basis for the formulations or diagnoses by reference to the criteria in the DSM for such personality disorders. No criticism can be made of testing the documents, whether described as diagnoses or as formulations, by reference to the diagnostic criteria for the personality disorders. The criteria would still be relevant to the formulation that such a disorder needed to be considered. It was legitimate for the questioner to seek to establish whether the session notes contained anything upon which Dr Lovett relied, and then if so minded whether other contemporaneous material did. The Panel were not asked to intervene by Ms Foster to prevent Ms Norris unfairly restricting the scope of Dr Lovett's answers to the question actually asked. If the question itself did not give scope for Dr Lovett to say that the real answer lay in documents or other material which he was not being asked about, that would have been an issue for re-examination, if there had been anything which needed to be addressed. He had given very extensive evidence in chief. If there had been no cross-examination on what Dr. Lovett said were important elements of support, it would have been to his advantage. And although he was unable to give evidence in re-examination orally, he was both mentally and physically capable of doing so in written form and had the opportunity to do so, but did not take it.
- The Panel plainly did not treat the session notes as the sole basis for the formulations. Dr. Lovett accepted that they provided no support for the formulations at all; FD[23]. The Panel dealt with what he did rely on in FD[25]. Subsequently available records from other medical professionals were dealt with in FD[31(i)]. The Panel considered all the material Dr. Lovett put before it. It did not go behind the Joint Statement of the Experts: that statement laid out very clearly what they thought the Panel needed to consider in order to reach a decision: the views of Dr. Lovett himself. That is exactly how the Panel approached it: FD[17].
(3) Substituting its own opinion for that of Dr Lovett
- Mr Grant here criticised FD [31(c), 32 and 34]. The Panel had found Dr Lovett to be "entirely unconvincing" whether his views were a diagnosis or just a formulation: on his own evidence there was no justifiable basis upon which he could have diagnosed PD for either A or B; and Dr Lovett's extensive claims about B's presentation involved "gross distortions of relatively trivial matters so as to exemplify his claimed diagnosis of personality disorder."
- For the Panel to come to such a view meant, submitted Mr Grant, that they had substituted their own views, without assessing the presentations of A or B, and despite the evidence of both experts that they could not comment confidently on the formulations because they had not seen the patients. This was implicitly accepted by the Panel in FD [12], and needed to be addressed explicitly in FD [31(h)]. Here, it had cherry picked Dr. Halari's evidence in re-examination, because her answer that Dr Lovett's contact with A was too limited to come to the formulation he did, had continued that "if he was taking everything into consideration -that is, contact with other healthcare professionals- then maybe his formulation took that on board. But that contact alone doesn't sufficiently allow him to sufficiently explain that formulation." The Panel had failed to identify Professor Powell's reasons for saying that he could not reach a conclusion on the formulations because he had not examined A or B. What they might indicate to the layman could be quite different from what, with other behaviours, they could indicate to an experienced clinician.
- The draft letter to A's GP referred to in FD [34], but never sent, is a long letter explaining how recent events illustrated that the trauma may have triggered the manifestation of an underlying personality disorder, and A demonstrated evidence of most of the severe problems which come with NPD, distortion of the truth and narcissistic rage being among them. This contained valuable insights, submitted Mr Grant, and the incidents were not relatively trivial: complaints about successive carers for A or her daughter or brother: and her son, inviting Dr Lovett to view photographs of him on Facebook, if indeed it were her son and not A herself or another family member behaving in that way.
- The essence of Mr Grant's third submission was that the Panel had substituted its own clinical opinion for that of Dr Lovett, in the teeth of the views of the experts that they could not form a view on whether the formulations or diagnoses were correct as they had not examined A or B for that purpose. This is a misconception, in my judgment, about the Panel's reasoning. The Panel rejected Dr Lovett's views as not being his genuine professional views. That issue was at the heart of the case and had to be resolved. Dr Lovett of course prayed in aid the justification, as he put it forward, for his views as showing that they were genuine, even if another psychologist would have reached a different view, or even if he had reached his views negligently. The Panel considered that justification carefully and rejected its genuineness. The Panel did not start its process of reasoning by considering whether it was of the view that neither A nor B had a personality disorder, then conclude that neither did, and find therefore that Dr Lovett's views were not genuine. That would indeed have fallen foul of the evidence of the experts. It did not express any view of its own as to whether either of A or B had a personality disorder. It is possible, even on the basis that Dr Lovett's views were not genuine, that they might do so. But the important point was its conclusion that Dr Lovett had no justification for saying so and knew it. That conclusion was set out fully. Mr Grant's submission amounted to the impossible contention that the agreed position of the experts was that the Panel had to find that neither A nor B suffered from a personality disorder, before it could find that Dr Lovett's views were not genuine. That was not a submission he could make, if only because the experts did not adopt that position either: their position was that it was for Dr Lovett to explain how and why he came to the views he did.
- I reject Mr Grant's cherry-picking submission. True, Dr. Halari had said that contact with A was so limited as to make it difficult to come to his formulation of personality disorder. Here, the Panel rightly noted that she was referring to "the formulation" as described by Dr. Lovett in his evidence, rather than "the significantly reduced version settled on by Dr. Lovett at the end of his oral evidence". But, said Mr Grant, the Panel had ignored what Dr. Halari then said; however, he too focussed only on part of what she said. After the part Mr Grant wanted, which I have have set out, Dr. Halari went on to say that because A had no further contact with professionals at that time, there was no paperwork Dr. Lovett could have seen. And I read her qualification, as a whole, as being very tenuous and vague. The Panel was criticised in reality for finding that Dr. Lovett had no material to justify his formulations but nonetheless was acting honestly; and subsequent material of which he had known nothing, showed there might have been a basis had he reconsidered the point later. This is not a persuasive criticism of the Panel's reasoning.
- I do not accept that the Panel was making a psychological judgment when it formed the view that Dr. Lovett had grossly exaggerated trivial incidents, particularly as they were in a position to judge A and B and their descriptions of the events. That judgment involves a judgment about what happened, rather than any psychological expertise. Besides, if an event recounted to Dr. Lovett is relied on by Dr. Lovett it is difficult to see that other evidence or judgment about it is precluded. Indeed, Mr Grant later contended that the evidence of A and B, unreliable and hostile, ought to have been used to support Dr. Lovett's judgment.
(4): Conflation by the Panel of statements of fact with opinion
- Mr Grant's point was that the formulations were opinions and not statements of fact, and so could not be false, but only correct or incorrect. Yet that is what Mr Grant submitted that the Panel had done in FD[32], ignoring the answers of Dr Halari. FD [32] referred to the absence of any justifiable basis upon which Dr Lovett could have come to a diagnosis of any kind of personality disorder. Mr Grant relied on answers given by Dr Halari, to which I have referred to the effect that no one had spent more time with A and B than Dr Lovett; his views should therefore be treated as quite significant; the documented treatment was in the range of reasonable treatments; she could not say that the formulation was outside the range of reasonable formulations, or criticise Dr Lovett's opinion that A had "underlying psychological problems"; conclusions about disorders and symptoms might not appear in notes being used as an aide-memoire; there were safety concerns about A and her care for her brother; it was reasonable for Dr Lovett to express concern to the GP about her seeing the diagnosis (as it was put to her) in an unsafe and unsupported manner.
- Mr Grant also criticised the Panel for its finding at FD [31 (d)] that Dr Lovett could have withheld the potentially harmful formulations; this was never alleged against him and was a point unfairly taken.
- Mr Grant was critical of [31(f)] of the FD, for the anxiety it would cause to the profession. It was illogical for the Panel to regard Dr Lovett's concern about the impact on the patient of the release of the records as unfounded, if the formulations were not diagnoses, and in any event had not been worked through from the session notes. This was despite Professor Powell's evidence, which the Panel accepted, that the practitioner should err on the side of caution.
- Mr Grant's fourth point covered two separate issues. The first is that statements of opinion could not be false. That is simply wrong if, as the Panel found, the opinion expressed was known to have no foundation by the person expressing it. That is what the Panel found. The second is that Dr Halari accepted that Dr Lovett's views should be treated as significant, the treatment given was within the range of reasonable treatments, and she could not say that the formulation was outside the range of reasonable formulations, and that it was reasonable to express concern to the GP about A seeing the diagnosis in an unsafe and unsupported manner. Mr Grant submitted that the Panel had failed to realise the importance of those points.
- I disagree. Dr Halari was not dealing with the genuineness of Dr Lovett's views, although her comments afforded some ammunition to show that they might be reasonable, and therefore genuine. The Panel however had the advantage of hearing Dr Lovett give extensive evidence about the issue which Dr Halari and Professor Powell agreed on: that it was for Dr. Lovett who knew why he had written what he had and with what justification, to explain how he came to his views. Dr Halari did not retreat from the position stated in her report that she had seen nothing to support the formulations, although skilful cross-examination had extracted some modest qualifications. There is nothing to suggest either that the Panel did not adhere to its stated position that where Dr Halari and Professor Powell differed, they would prefer the evidence of Professor Powell. That stance was not criticised by Dr Lovett's team; indeed it was the stance they had sought. It is possible that some comments made by Dr Halari, upon which Dr Lovett wished to rely, were not taken into account because Professor Powell had not echoed them. But even if so, that is no basis for holding that the Panel's decision was wrong: both experts agreed that Dr Lovett was the one who could and had to explain how he had reached his formulations; the evidence of Dr Lovett himself was what persuaded the Panel that his views were not genuinely his views; Dr Halari's comments could be argued to have afforded some indirect support to Dr Lovett but that could have carried negligible weight in the light of what the Panel had heard from Dr Lovett himself.
(5): Sufficient evidence to support Dr Lovett's formulations
- Mr Grant then argued that the evidence was sufficient to justify the formulations, and that I should so find. The Panel's conclusion that there was insufficient was perverse. He took me to the DSM IV diagnostic criteria for NPD and Borderline Personality Disorder, BDP. He relied on the submissions made by Mr Horne to the Panel for this point.
- Mr Horne had identified the following indicators, with references, for B's formulation of narcissistic, borderline, mixed personality disorder: a significant misunderstanding of the roles of other professional people, anger displayed towards others, increasing instability, impulsiveness, wanting to cut off her leg, panic attacks, taking tranquilisers, attention seeking, a sense of being abandoned, transient relationships, unstable self-image, feelings of emptiness and a grandiose sense of self-importance. He had identified indicators in respect of A's formulation of NPD as including: serious misunderstanding of C's needs, A's abusiveness towards, and the acrimonious breakdown of the relationships with, C's care manager, increasing contact from Ms Kennedy about A, A's resentment at the article written by B's husband, a sense that she projected her own lack of understanding of services on to those providing them, and her twinship. Mr Grant submitted that the Panel was simply wrong to conclude that Dr Lovett had not justified the formulations on the evidence about the personalities and actions of A and B. He took me through it.
- I have considered it and the Panel's decision carefully. I cannot accept his submission. I bear in mind the limitations on an appeal by way of rehearing, and especially when the issue turns on the view formed of the oral evidence of the key witness. The Panel's conclusion simply cannot be described as wrong. He also suggested that the Panel were wrong to find contradiction between Dr. Lovett's witness statement and his oral evidence, and had only done so because they had treated diagnoses and formulations as the same. That is not correct. The changes were evident to them, and not related to the name of the documents. This is explained very fully by the Panel, and unanswerably, Mr Grant's submissions notwithstanding.
The second main issue: the Panel's handling of the allegations of dishonesty or knowingly making false statements was unfair
- Mr Grant made a number of submissions under this broad heading: (1) the allegation that statements were made knowing them to be false was inadequately pleaded, (2) the allegation was not properly put to Dr. Lovett in cross-examination, (3) the Panel had erred in its approach to the burden and standard of proof of dishonesty and (4) its consideration of the evidence of dishonesty was inadequate.
(1): The allegation that statements were made knowing them to be false was inadequately pleaded
- Mr Grant referred me to a number of authorities. In Howlett v Howlett [2017] EWCA Civ 1696, a costs order turned on whether a claim for personal injuries in a low velocity impact accident had been "fundamentally dishonest." The loser submitted that the judge could not so find where no dishonesty had been pleaded or put to the relevant witness. At [33], Newey LJ, with whom Lewison and Beatson LJJ agreed, concluded that the pleaded defence had adequately raised the issue, while expressly not putting forward a positive case of fraud: it referred to "elements of fraud", it was denied that the accident had occurred at all, credibility was in issue, and indicators of a contrived accident were pleaded. No claim of "ambush" could be raised. Newey LJ then accepted, looking at the totality of the questioning, including re-examination about honesty, what the judge himself had said, and the way in which the case had been conducted, that honesty had been adequately explored for the issue to have been fairly dealt with.
- Mr Grant also referred me to a passage in the speech of Lord Millett in Three Rivers District Council v Governor of the Bank of England (No.3) [2003] 2 AC 1 at [183-6]. Fraud or dishonesty, and the like ingredients for misfeasance in public office, had to be distinctly alleged and proved. The facts, matters and circumstances relied on to show that a defendant was dishonest, and not merely negligent, had to be pleaded. But my reading beyond the extract showed that this was a dissenting judgment on whether the claim by Three Rivers DC should be struck out, though he was proved right in the end. The principles he enunciated may not have been controversial, but I need to be wary of his precise language, short of undertaking a full analysis of that case, which I decline to do. The language may not be apt for all cases.
- Mr Grant also referred to what Davis LJ said in Hussain v Amin and Chartis Insurance [2012] EWCA Civ 1456, an appeal against a costs order, in another case involving a claim arising out of an allegedly staged accident. Davis LJ elaborated concerns expressed by Lord Dyson about the way in which what was in substance an allegation of fraud had been pleaded. The defence pleaded "significant concerns" as to whether the accident had been staged. Davis LJ described that as "insinuation not allegation". If a party could justify a plea of fraud, "it behoved it properly and in ample time before trial so to plead in clear and unequivocal terms and with proper particulars." The sort of pleading deployed "should not be sanctioned", in the sense of "allowed", but presumably should be "sanctioned" in the opposite sense of "punished".
- In Sheill v GMC [2008] EWHC 2967 (Admin), Foskett J had also said that a serious allegation such as dishonesty had to be properly formulated and specifically alleged; the false statement would usually be identified in the charge. Roomi v GMC [2009] EWHC 2188, per Collins J does not assist Mr Grant; it concerned the way in which an allegation which had not been particularised was used to undermine the registrant's contention that deficiencies had been rectified.
- Mr Grant submitted that the like strictures should apply to an allegation that a statement was made knowing it to be false, if that was indeed what the allegation meant. The way in which the allegations had been particularised did not permit the HCPC to argue that the formulations were created, after the event, to provide a rationale for non-disclosure of the session notes. This allegation was not one to which particular 14, dishonesty, was said to apply. The particulars were drafted in such a way that the same detail or its absence sufficed for both knowingly making a false statement as well as a lack of objective justification, which was an allegation of negligence. The issue was raised on Dr. Lovett's behalf by Ms Foster in her submissions that there was no case to answer. I have set out already the response of Ms Norris and the decision of the Panel. I have also described in paragraph 9 above how the Panel linked particulars 6 – 8 and found them proved on the HCPC case.
- The particulars are poorly drafted, in my judgment, for the case which was to be put by the HCPC. Particular 6 contains no detail of when and in what form the acts constituting the non-provision of the medical records took place. The HCPC came to rely on refusals to disclose specifically in the two letters dated 14 November 2011 from Dr Lovett to the GPs of A and B, although Ms Richards QC for the HCPC submitted that the whole sequence of correspondence remained relevant. In reality however, those are not direct refusals; the provision of the medical records was made conditional, and it was the justification for the pre-condition which was at issue. The particulars, next, contain no reference to the link between particulars 6 to 8. Neither do particulars 7 and 8 contain a link to particular 6.
- In reality, however, the allegations were developed to mean that Dr Lovett had fabricated, or had no sound basis for creating the so-called formulations or diagnoses referring to personality disorders, (particulars 7 and 8), and had used those as a reason for not disclosing any of A's and B's medical records to their GPs, without conditions, because these "formulations" would be disclosed. So the refusal to disclose was for no good and lawful reason. But the sting is in particulars 7 and 8, the making of false or unjustifiable records of personality disorder, which must have had some purpose, and then their disclosure, which, true or false, Dr Lovett knew would cause distress to both A and B, as it did.
- I see no good reason why, if that was the true allegation, the HCPC should not have put it that way. That is how the Panel came to decide the case, after all. Indeed, particular 7(a) that A had "underlying psychological problems" is plainly not false on its face; on its own or out of context, it was in fact true, "trite" said the Panel in [33] of its Final Decision, The Panel found proved the allegation that it was false, on the basis that phrase in the particular had to be interpreted as relating to the "clinical formulation", the context of the phrase in Dr. Lovett's letter of 14 November 2011, agreeing to release the medical records on certain conditions. I note also that the phrase "underlying psychological problems" also appears in Dr. Lovett's letter of 14 November 2011 to B's GP, but forms no part of particular 8. This would not have helped point Dr. Lovett to those letters on the formulations as the essential features of particulars 6, 7 or 8.
- I also mention here that it was at least potentially misleading for the HCPC to use the word "false", as it did in particulars 7 and 8, without specifying that it meant "knowingly false", at all events when the word "dishonestly" appeared in the list of particulars but not against this particular, and yet does in relation to particular 5, where the word "false" also appears. It may have been, at the outset of the making of the allegations, that particular 6 was related to the alleged false invoices which it was thought that the medical records would have exposed, in particulars 1 and 2, and perhaps 5, relating to travel expenses.
- The HCPC ought to formulate its particulars with greater care and precision to convey the case which it is actually making. Opening addresses, and submissions and decisions on no case to answer, are not proper stages at which the true substance of the allegation should be made clear, and still less emerge.
- Although I am critical of the drafting of the particulars, the question is whether Ms Richards is right that their inadequacies amount to no more than an irregularity, perhaps quite a serious one, but not to one which had occasioned any unfairness, or any which had not been remedied in the course of the hearing. I am satisfied that she is right. I reject Mr Grant's submissions that those inadequacies in fact prejudiced a fair hearing on them.
- First, Dr Lovett's teams, and he, knew full well what the case was about. I read Dr. Lovett's witness statement, when dealing with particulars 7 and 8, as recognising the nature of the case. His comments on particular 6 relate to the handling of a diagnosis of personality disorder, the issue raised by the formulation. Ms Foster cross-examined A and B on the basis that they were wrong to allege that Dr Lovett had fabricated the formulations. Although "false" can mean inaccurate or wrong, to my mind the connotation of the word generally and the more so in this context is "knowingly wrong" as Mr Grant agreed. It is not readily used for an innocent misrepresentation.
- Second, even if Dr Lovett or his team had been under any misapprehension as to how the HCPC was putting its case, the scales must have fallen from their eyes when Ms Norris opened it. She said that the HCPC case was that the arguments advanced by Dr. Lovett for his failing to provide the notes "is either false, so his suggestion that there is underlying psychopathology…is simply false, not based upon his own true findings or upon a genuinely held belief by him, or alternatively, was not objectively justifiable." She repeated this in response to Ms Foster's submission that there was no case to answer. The Panel's acceptance of Ms Norris' submission could have left Dr Lovett in no doubt. Thereafter, Dr. Lovett had plenty of opportunity in the evidence which he gave orally in chief to deal with the points.
- I would have expected a sustained complaint about what Ms Norris had said, and time to have been granted to Dr Lovett and his team, if there had been a complaint of prejudice to the Panel. But none ever came. This assertion of prejudice was not in fact a point made by any of the three experienced legal teams deployed by Dr Lovett. Mr Grant accepted that there had been no suggestion that further time was needed to answer any "revised" allegation or that Dr. Lovett needed to return for further cross-examination on the question of whether the particulars were "knowingly false", because he had not realised that that was the case against him. Nor, he agreed, had there been any suggestion at the hearings or in submissions that that case had not been put.
- Third, I am not willing to accept that Ms Foster's perfectly proper submissions on the meaning and inadequacy of the allegation of making knowingly false formulations constitute evidence that that is how they were understood. I have seen no complaint to that effect in the submissions. The submission that the particulars related to invoices were the ones that alleged dishonesty and that the others alleged negligence is not evidence that the case was prepared on that basis, to Dr. Lovett's prejudice when the true case became apparent. There is a large difference between a submission that the particulars mean "inaccurate" and not "knowingly false" or doing so for the purposes of submitting that there is no case to answer, and complaining that the case has so changed or changed unexpectedly that the registrant is not in a position to meet it, and needs time to prepare for it.
- The October 2008 memorandum of a telephone conversation between Ms Kennedy and Dr Lovett also featured in Mr Grant's submissions, in reply: if it had been appreciated that the allegation was that the formulations were false, more would have been made of it before Mr Horne's closing submissions. I do not accept that. The note had featured in the case, without looming large, but there never was any suggestion from the team conducting his case that the HCPC had wrong-footed them for so many years in the way it put its case. The Panel dealt with it; it was rather a two-edged piece of evidence, and its wary treatment by his teams entirely understandable. The particulars caused no prejudice. I deal further with this note later.
- Mr Grant also complained that it was never alleged that Dr Lovett ought to have sent the session notes separately from the formulations, though the Panel also commented in FD [63], dealing with whether the proof of particulars 6(a) and (b) amounted to misconduct: Dr Lovett should have "promptly provided the health records as requested, having exercised appropriate professional judgement in relation to what he should responsibly include therein." Had Dr Lovett withheld the formulations, he would have been criticised for that. There was no suggestion that he should have disclosed his records piecemeal, and he did not deal with it in his witness statement. This was not a conclusion warranted on the drafting of the particulars. I am far from clear however that the Panel is saying that he ought to have kept the formulations back if they were genuine. The emphasis is rather that all the records should have been disclosed, though recognising that there might have been scope for keeping some back, if they were genuinely how Dr Lovett had described them to be, at the end of his oral evidence. The problem was that it concluded that his reasons for keeping them back and then imposing conditions were not based on any exercise of appropriate professional judgment, and in the light of its judgment as to their falsity, it is difficult to see how they could be. The comment is more a reference to what general professional standards required, against which what it had found should be judged, rather than a comment on what Dr Lovett should have done with documents created in the circumstances found to have existed here.
- Mr Grant also submitted that the dates of the withholding of the medical records were unspecified in the particulars, which is correct. Ms Richards said that the HCPC had relied on the whole sequence of events starting with the letter from Mr Collins, through the response to the ICO, culminating in the letters of 14 November 2011; but it was those letters which were the actual withholding at issue. But Mr Grant responded that, by that stage, Dr Lovett had more information than at the time of the formulations, and that made him uneasy about communicating his views directly to the GPs, without an intermediary in the form of a senior psychologist, including a long and difficult telephone call from A to the PA to the manager of the hospital where he was based. The problem for Mr Grant is not in showing that there were defects in the particulars, but in showing that they caused Dr Lovett any prejudice. There is no evidence at all that the focus on the two letters of 14 November 2011 caused any problems, nor that Dr Lovett was unable to explain that he had known more about the possible reactions of A and B to the disclosure of the formulations in 2011 than he did in 2010.
Ground 2: the allegation of fraud must be put to the person accused of it
- I was referred to a number of cases dealing with the duty to put to a witness any allegation that he was lying or had acted knowingly falsely. The first was Chen v Ng, above. The judge had disbelieved Ng, but it was complained that the basis for his disbelief had not been put to Ng, and so it was unfair for the judge to rely on them; this was accepted by the Board. It would not always be possible to achieve the ideal of putting to a witness every possible reason for not believing him, but there was a general rule that it is not appropriate for evidence to be challenged as inaccurate in submissions when the witness, and especially a party, had not been challenged on the accuracy of what he said. The case actually concerned the fact that the grounds upon which Ng's evidence had been rejected had not been put to him, rather than the fact that it had been rejected. The Board ruled that the true question was whether the trial, viewed overall, was fair "bearing in mind that the relevant issue was decided on the basis that a witness was disbelieved on grounds which were not put to him." The Board said this at [55]:
"55. At a relatively high level of generality, in such a case an appellate court should have in mind two conflicting principles: the need for finality and minimising costs in litigation, on the one hand, and the even more important requirement of a fair trial, on the other. Specific factors to be taken into account would include the importance of the relevant issue both absolutely and in the context of the case; closeness of the grounds to the points which were put to the witness; the reasonableness of the grounds not having been put, including the amount of time available for cross-examination and the amount of material to be put to the witness; whether the ground had been raised or touched on in speeches to the court, the witness statement or other relevant places; and, in some cases, the plausibility of the notion that the witness might have satisfactorily answered the grounds."
The Board also cited, with approval, what Lord Hoffmann said in Biogen Inc v Medeva Plc [1997] RPC 45, and adopted in Piglowska v Piglowski [1999] 1 WLR 1360, 1372:
'…[S]pecific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance…of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.'
- Newey LJ in Howlett, above, cited at [35] Markem Corp v Zipher Ltd [2005] EWCA Civ 267, [2005] RPC 31, at 58, citing Hunt J in Allied Pastoral Holdings v Federal Commissioner of Taxation (1983) 44 ALR 607 discussing Browne v Dunn (1894) 6 R 67:
"His Lordship conceded that there was no obligation to raise such a matter in cross-examination in circumstances where it is 'perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling'. His speech continued (at 72): 'All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.'"
- Finally, Newey LJ commented at [39]:
"First, where a witness' honesty is to be challenged, it will always be best if that is explicitly put to the witness…But what ultimately matters is that the witness has had fair notice of a challenge to his or her honestly and an opportunity to deal with it. It may be that in a particular context of a cross-examination which does not use the words "dishonest" or "lying" will give a witness fair warning. That will be a matter for the trial judge to decide."
- Mr Grant submitted that an allegation of fraud needed to be put explicitly to the person accused of it so that they could deal with it specifically, knowing what was alleged against him. This was a requirement of fairness. It was not put explicitly in this case by Ms Norris when she cross-examined Dr Lovett in relation to A, and was not put at all in relation to B because Dr Lovett collapsed before that point had been reached. The Panel did not hear him respond in cross-examination and Dr Lovett was unable to deal with it in re-examination.
- Dr. Lovett was cross-examined by Ms Norris, who made it clear in her questions that she was challenging the truthfulness of Dr Lovett in his description of the formulations. She took him through the diagnostic criteria for NPD and borderline PD to contend that he had no basis for his formulations and so they were knowingly false. But she only put the point to him for him to answer it, obliquely, asking whether he understood that she was "suggesting" that the absence of correlation, as she contended, between the formulation and the notes on B was such that the "formulation could be a construct; something that has arisen later." Dr Lovett said that he absolutely understood her concern.
"PRESENTING OFFICER: I am just going to set the scene a little bit because we have had a little bit of a break over lunch. The way that charge – the allegation – against you is pleaded is that either your formulation/your comments about B were false, and that is the questions that I have been posing to you so far, that there is no correlation between your formulation and your notes such that the formulation, I suggest, could be a construct; something that has arisen later. Do you understand that is what I am saying?
Dr. Lovett. I do understand your concern, absolutely.
Q. So that is that. The case is also pleaded in a way which leaves open to the Committee the possibility that they might consider – they need not – that the formulation and the terms you ascribe to the individuals was unjustified, so not based upon proper and sound reasoning.
A. Of course, I understand that."
- As Dr Lovett had never been cross-examined about his formulation of A, it could not rule on the allegations in respect of her, nor could it then do so fairly in respect of B because it found them all to be linked.
- For all the oblique and rather anaemic way in which Ms Norris put the point to Dr Lovett that he knew that the formulations were baseless, Dr Lovett knew what the case was as he agreed in cross-examination; it was not a case later put forward in submission, taking him unawares and to which he was unable to respond. He could have responded further in a re-examination statement. There was no complaint by Ms Foster that the issue of knowledge of falsity had not been put adequately, if Ms Norris was intending to rely on that passage of arms, nor was there any subsequent complaint that the issue had been put in such a way as to make the HCPC submissions on the point unfair. There may well have been sound tactical reasons why no such issue was raised by Ms Foster during cross-examination by Ms Norris. The question is whether the issue was raised sufficiently clearly in cross-examination for submissions on the issue to be fair. I judge that it was, though it would have been better if the issue had been more clearly and directly put.
- There was no cross-examination on the potential motives for Dr Lovett's use of formulations known to be false. It is possible that there would have been if cross-examination had continued. I do not know whether the Panel would have objected to re-examination on that point on the basis that it was not covered in chief because cross-examination had been expected to provide the occasion for Dr Lovett's response, but no such point was raised. But I do not think that this was unfair: he would have denied that they were false to his knowledge or baseless. It was rather to Dr Lovett's advantage that Mr Horne, though aware of the HCPC's speculated motives, could point to the absence of any specific motive being advanced and not even put to him. It was an issue which the Panel would have to grapple with.
(3): the Panel and the burden and standard of proof in relation to dishonesty
- Mr Grant submitted that the burden of proof that statements were made knowing them to be false lay upon the HCPC, and did so to the civil standard but requiring particularly cogent evidence, as was well known where criminal conduct is alleged in civil cases. The point is covered in a number of cases of which In Re B (Children) [2008] UKHL 35 is the most authoritative and in which at [62] Lord Hoffmann said that what was required was only that "the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur…." Lord Nicholls in Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 had said, and it amounted to very much the same, that the more serious the allegation, the stronger should be the evidence before the court concludes that it has been established on the balance of probability to the extent appropriate in any given case.
- The Panel, submitted Mr Grant, had neither addressed the standard of proof in that way nor recognised that allegations of a form of dishonesty were being made against a professional man of unblemished character.
- The Panel had required Dr Lovett to prove his reasons for withholding the formulations as he did, rather than placing the burden on the HCPC to disprove their truthfulness, as could be seen for example in [17] FD, and as was the impression from the structure of the Panel's reasoning.
- I reject Mr Grant's submission that the Panel misdirected itself in relation to the burden or standard of proof. In [11] FD, it directed itself correctly that it was for the HCPC to disprove the genuineness of the reasons given by Dr Lovett for withholding the medical records. I am not prepared to infer from the structure of its reasons that it forgot that point. The FD takes the reasons, as given and justified in evidence by Dr Lovett; he was the only one who could give direct evidence as to the reasons and the way in which he had approached the formulations and their significance for the disclosure of the records. This was very much in line with what the two experts had agreed was the issue for the Panel to resolve. There was no direct conflict of evidence as such on this point. So the Panel's conclusions were bound to take those reasons and analyse them. That is why the FD could give the impression that Dr Lovett was being required to prove his reasons; but he was not. The Panel is carefully explaining why they reject his reasons, and find them to be untruthful.
- Mr Grant pointed out, understandably as a main plank of his argument, that the Panel knew that Dr Lovett had an unblemished career of thirty years as a clinical psychologist, (apart from the misconduct admitted during the hearing). It would be a quite astonishing act for him to fabricate formulations to the harm of two patients. The evidence required to show that had to be particularly cogent. True it is that the Panel does not direct itself about the need for the evidence of knowledge of the baselessness of the formulations to be cogent, as if this was the civil trial of a criminal offence. I agree with Mr Grant that such an approach was required. The distinction between dishonesty and knowingly making a false representation is of no real importance in this context. But in my judgment, that approach was met here. The Panel went carefully through the reasons; they did not accept them, for detailed reasons. The case for rejecting them was cogent. This was not a conclusion based on flimsy material, or marginal evidence. The Panel saw and heard Dr Lovett explain what he thought and why: there was nothing in the session notes; there was considerable reliance on events and medical records of A and B, which he was not aware of when he came to write the formulations. Ms Richards is quite right to point to the advantage which the Panel has over this Court on appeal in its appraisal of the witnesses and the detail of the evidence. There is no basis for holding that the Panel has not made proper use of that advantage.
- I reject Mr Grant's complaint that it was unfair for the Panel to use Dr. Lovett's experience against him, to reject the possibility of negligent formulations, leading to the conclusion that they were knowingly false: it should have treated Dr. Lovett's record of honesty as telling against such a finding. This, although a perfectly understandable argument, is not sound on this appeal. The Panel had to reach a judgment, having seen and heard Dr. Lovett. It was entitled to reach the harsher judgment and I am not in a position to hold such a judgment wrong, dependant as it is on an appraisal of all his evidence, an appraisal undertaken after considerable exposure to him as a witness, and carefully reasoned. The Panel considered the cogency of Dr. Lovett's reasoning for his formulations, and were entitled to set that against his very considerable experience, and to consider this in the light of the way he gave answers in evidence and their content.
(4): The consideration of the evidence of Dr Lovett's alleged dishonesty
- As this was a rehearing, Mr Grant invited me to reconsider the evidence in the light of Mr Horne's cogent submissions to the Panel in closing. Mr Horne highlighted Dr Lovett's note of the telephone conversation with Ms Kennedy on 29 October 2008, in which he discussed A and B. This memorandum he submitted, as had Mr Horne, was entirely inconsistent with the HCPC claim that the formulations were a later fabrication, at some unknown point but after 2009.
- I do not accept this. The Panel did not find the note to have been a fabrication itself. It dealt with it at [31(g)] FD. The note had not featured in the written evidence of Dr Lovett, but it had been the subject of some limited oral evidence in chief. There was no cross-examination on it. But there might have been been, and it could have been used in re-examination even if not directly the subject of cross-examination. Ms Kennedy was not called to give evidence about it, and before the substantive hearings were under way, Dr Lovett's team had told the Panel and HCPC that she would not be called, notwithstanding the witness summons they had obtained for her during one of the preliminary hearings. Her witness summary for that hearing had explained why she required a witness summons though she was willing to give evidence. This note was not specifically mentioned as a topic for her evidence but may have been within some general point about A and B. I have seen no evidence as to why she did not give evidence.
- There is a real contrast as well between the date of the note, and the time at which Dr Lovett said that his views about personality disorder began "to click", which was much later, as the Panel pointed out in the FD, and other evidence of Dr Lovett about how he treated the disclosure of the formulations. In reality, if it is genuine, it is unhelpful to Dr Lovett. And it is not surprising that it was not something upon which Dr Lovett himself came to rely in evidence. The conclusions of the Panel are sufficiently robust that I do not consider that I can hold that its decision on his truthfulness was wrong.
- Mr Horne also highlighted the absence of any motive being identified, let alone put in cross-examination to Dr Lovett; yet what motive could there rationally be, if it could not be identified specifically. It was not suggested that any other documents had been fabricated. The Panel failed to grapple with the absence of motive, once it had been established that disclosure of the records would not support the allegations of invoicing irregularities, but rather would defeat them. This was a very unusual conclusion to reach in the case of a professional of thirty years unblemished standing. The Panel had refused to speculate about the motive, yet it must have existed, if the Panel were right that the formulations did not represent Dr Lovett's genuine views.
- Mr Grant accepted that it was not necessary for the Panel to identify a specific motive in order to reach its conclusion, but submitted that its inability or refusal to do so undermined its conclusions. I do not think that the Panel thought that this was motiveless conduct in any sense. It did not reject any of those canvassed by Ms Norris. It concluded that it did not need to select one from among the possibilities she raised, or guess at one of its own, because that would be unnecessary speculation. I am satisfied that that was a reasonable approach for the Panel to take; there were possible motives which explained why Dr Lovett had acted as it concluded that he had. There was no point in speculating as to which of those or other possibilities motivated Dr Lovett's actions. A refusal to be precise in those circumstances does not undermine its conclusions.
- Mr Grant also submitted that the Panel had also failed to address the substance of submissions on behalf of Dr Lovett, attacking the honesty and reliability of A and B, which were relevant to its conclusions about his honesty. Once it had found that their evidence was unreliable, sometimes mistaken and that they were antipathetic to Dr Lovett, it ought not to have placed any reliance on their evidence.
- The Panel set out its view of Dr Lovett's evidence in general. It did not accept A and B as reliable witnesses either. It recognised the weaknesses in their evidence, notably accepting the evident antipathy they bore Dr Lovett. I do not accept Mr Grant's submissions that the Panel had ignored the impact of the weaknesses in their evidence. But what is important for this case is the significance of that evidence.
- It is plain that, notwithstanding Ms Foster's cross-examination of them about Dr Lovett's thinking, the direct evidence they could give on particulars 6-8 was very limited; it was confined to evidence about some of the incidents upon which Dr Lovett relied on in his evidence, not all of which were available to him when writing the formulations. The general impression which they made upon the Panel was not used to form a view, although it might have been, that the formulations were right or wrong; that would have been contrary to the whole approach of Dr Lovett to the psychological analysis of A and B, which he was the only one who could judge as he had assessed them face to face. He pointed to no aspect of their evidence to the Panel to support his formulations.
- It is possible that their evidence on stayed particulars could have been used to Dr Lovett's advantage if it were rejected as unreliable; but the Panel did not use it in that or any way, just as Mr Horne urged the Panel not to. It put the billing issues out of mind in assessing the credibility of all three.
- Mr Grant objected to the Panel's description of Dr. Lovett relying on what it described as gross exaggerations of relatively trivial incidents; FD[31(c)]. This, he said, meant that the Panel needed to consider the criticisms made by Mr Horne of the evidence of A and B. In my judgment, an assessment of that sort was legitimate for the Panel which had the advantage of seeing and hearing all the witnesses. Some view had to be formed of those incidents. It could not just be for Dr. Lovett's judgment. It was not necessary however for more than a general view of their evidence to be given, allied to these specific instances, to show the Panel's consideration of its reasoning about the evidence of A and B. The judgment about their evidence was very much for the Panel.
- Mr Grant also made something of an issue but lightly traversed by Ms Foster in cross-examination of A. A had signed a statement of truth in the personal injury litigation that she had incurred the full sum of Dr. Lovett's invoices, even though she was denying the debt in these disciplinary proceedings, but never said so. Taking it at its highest against A and in favour of Dr. Lovett, I can see its potential value where there was a straight factual issue between them over the invoices. But that had fallen by the wayside. Whether or not the medical records were first sought to clarify Dr Lovett's charges, the Panel accepted that the invoices were in order, except where Dr Lovett had admitted otherwise, and the remaining ones which were the subject of charges were stayed. I can see its possible value to certain aspects of the issues in particulars 6 – 8, but these were very much dependant on Dr. Lovett rather than A and B's evidence, and it is difficult to see how they could sensibly undermine or reverse the judgment reached by the Panel. It follows that Mr Grant's criticisms of the Panel's approach to the evidence of A and B can bear no fruit.
The third main issue: the fairness of the hearings and decision
(1) The absence of a party
- The principal authority by reference to which the Panel directed itself in its final decision to continue notwithstanding Dr Lovett's absence, to which Cheema-Grubb J had referred was GMC v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR 3867, in which Sir Brian Leveson P, with whom Gross LJ and Sir Stanley Burnton agreed, said between [17-20]:
"17. In my judgment, the principles set out in R v Hayward, as qualified and explained by Lord Bingham in R v Jones, provide a useful starting point for any direction that a legal assessor provides and any decision that a Panel makes under rule 31 of the Rules. Having said that, however, it is important to bear in mind that there is a difference between continuing a criminal trial in the absence of the defendant and the decision under rule 31 to continue a disciplinary hearing. This latter decision must also be guided by the context provided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public as set out in section I(IA) of the 1983 Act. In that regard, the fair, economical expeditious and efficient disposal of allegations made against medical practitioner is of very real importance.
18. It goes without saying that fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC (described in this context as the prosecution in R v Hayward, para 22(5)). In that regard, it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far. Steps can be taken to enforce attendance by a defendant; he can be arrested and brought to court. No such remedy is available to a regulator.
19. There are other differences too. First, the GMC represent the public interest in relation to standards of healthcare. It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.
20. Second, there is a burden on medical practitioners, as there is with all professionals, subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession."
- I have set out at some length the history of the proceedings, for it is an unusual case in many respects. Mr Grant submitted that the proceedings were unfair, and breached both common law and ECHR Article 6 rights. In particular, the Panel ruling, on 15 March 2016, that particulars 6-8, 9 (c ), 10 and 11 should proceed, misled the parties because it was wrong to characterise the evidence on particulars 6-8 as "very straightforward"; it was also wrong and unfair to do so on the grounds that those particulars did not contain an allegation of dishonesty, when that was in essence the basis upon which the Panel found them proved. The Panel was also wrong to rule against Mr Edis' submission that Dr Lovett would be prejudiced by not being able to complete his cross-examination, re-examination and Panel questions in the usual way, and was wrong to conclude that it was "quite simply unrealistic to imagine that he would be likely to give further evidence to advance his case in cross-examination."
- It was submitted that Cheema-Grubb J had also been misled by the Panel's description of particulars 6-8 as "very straightforward", and had been misled by Ms Richards that they did not involve dishonesty. Mr Grant did however insist that he was not seeking impermissibly to appeal by the back door against her decision. It was not until October 2016 that the HCPC advanced three possible motives for dishonesty in the written closing submissions served on that date.
- Above all, submitted Mr Grant, viewing the proceedings over their entire course, and then focusing on the impact of Professor Fox's revised reports of early 2017, it was clear that the Panel ought to have stayed the case permanently. Mr Grant had found no other reported regulatory case in which the registrant had lost capacity to continue part way through being cross-examined, and yet the proceedings had continued, let alone continued to serious allegations of dishonesty being found proved, leading inevitably to erasure. They could not continue consistently with Jones.
- The HCPC sought an adjournment sine die with 6 monthly updates on Dr Lovett's condition, rather than continuing to proceed. The Panel had rejected this because, as it would become inquorate in June 2017, such a decision would amount to an abandonment of the case. Given the nature of the allegations pursued over the years, the Panel Chair had questioned how the HCPC thought that it was addressing the public interest in making that suggestion.
- Mr Grant also referred to the exchanges between Mr Edis and the Chair of the Panel during his submissions on a permanent stay. Mr Edis had emphasised the issues which had yet to be put in cross-examination, re-examination which could not cover issues not put, and Panel questions which could be important. The Chair intervened to say that Dr Lovett had given all of his evidence and, upon correction, had suggested that the HCPC was not under an obligation to cross-examine Dr Lovett anyway, to which Mr Edis pointed out that it had a duty to put its case.
- I start with whether the proceedings were fair in the way in which, after Dr Lovett's collapse on day 13, the Panel continued them to finality. I accept Ms Richards' submission, not disputed by Mr Grant, that I neither can nor should go behind the judgment of Cheema-Grubb J, nor do I have any desire to do so. There was no attempt at an appeal. This means that the Panel's decision of 14 March 2016, which was the subject of the challenge which she heard, and which was given effect in the Panel's subsequent decisions of 18 July 2016 and 2 February 2017, cannot be regarded as unfair save to the extent that circumstances had changed, or to the extent that events might show that Cheema-Grubb J's judgment that the future conduct of the hearing would be fair was confounded by the way in which events actually turned out.
- I note in passing also that the same applies to the decision of William Davis J, who rejected on paper a challenge to the Panel's decision of 17 December 2014, which was not taken further. This was an adjournment of a hearing to April 2015, because of Dr Lovett's suspected heart attack; but the challenge appears unlikely to have been on the basis that the case should continue but rather on the basis that the sequence of decisions starting on 5 November 2014 to continue with the proceedings should instead have led to their stay.
- I consider first whether there had been a change of circumstances after Cheema-Grubb J's decision such that what would otherwise have been a fair course of proceedings became unfair. It is of course for the Court to decide whether the proceedings were fair; but in my judgment the Panel considered the issues at all stages, and most importantly the 2 February 2017 decision, carefully, with full reasons, and by reference to the correct legal framework. Notably it correctly recognised that the proceedings had to be fair to Dr Lovett; it could not proceed were that not to be so. It also directed itself, this time, in line with Adeogba, which it previously had not been referred to, but which Cheema-Grubb J's judgment would have brought to its attention. This was important in at least two respects: it emphasised the particular public interest in the finality of disciplinary proceedings, and the obligation of the registrant to co-operate with the hearing. The Panel also had the advantage over this Court of a full picture of all the evidence given thus far, including the impression which Dr Lovett had made on them. Accordingly, whilst its assessment, that it was acting fairly in proceeding as it did, cannot be conclusive that it did act fairly, it is entitled to considerable respect.
- Mr Grant submitted that, by February 2017, there had been a fundamental change in circumstances since Cheema-Grubb J's judgment in Dr Lovett's now total loss of capacity to participate in the proceedings. That made it unfair to continue, even if it would not otherwise have been unfair. I disagree. The Panel accepted the evidence of Dr Fox on behalf of Dr Lovett: Dr Lovett now had no capacity in relation to the case, but importantly, it was not Dr Fox's evidence that that had always been so; rather it was apparent from his examination of October 2016. Indeed, the Panel was correct to note that in September, Dr Lovett had had sufficient grasp of the case and its strategy to decide to change his whole legal team for the third time. Its conclusion that Dr Lovett had had adequate capacity and opportunity before losing capacity around the autumn of 2016 to provide a statement of answers in re-examination, as suggested and then directed, is plainly correct. Its conclusion that he had therefore chosen not to engage with the proceedings is unanswerable on the medical evidence. Moreover, as the Panel also pointed out, there was no evidence throughout the whole of the period from 2014 to autumn 2016 from any of the legal team of any actual difficulties in taking a statement from him, or providing him with information which he could understand for the purposes of doing so. Accordingly, were there to be any prejudice to his case as a result of his loss of capacity in autumn 2016, it was a prejudice brought about by his own refusal to comply with directions and to use the opportunites available to him. The Panel rightly pointed out that it would harm the public's confidence in the profession and its disciplinary processes if a registrant could refuse to engage in the proceedings, contrary to his professional obligations, and then rely on the consequences of his refusal to thwart proceedings against him.
- Mr Grant's submission that no re-examination statement was prepared because, until Dr. Lovett finally lost capacity, efforts had been directed at getting him fit to resume lacks any evidential basis. It is unconvincing too; Dr. Lovett's condition was changing; it had been suggested that he produce such a statement. It would have focussed his mind, even if he were unable to resume orally. There can be no sound basis for holding the Panel's decision of March 2016 to be unfair in the outcome.
- Mr Grant was at times critical of the way in which the Panel referred to the difficulty of its becoming inquorate in July 2017, which he said had led them to decisions which were unfair. Of course, if the proceedings were unfair, the fact that they would have had to start all over again or, more probably, be stayed permanently, could not justify an unfair process. But I see no reason why, in relation to proceedings begun in 2012, when the Investigating Committee concluded that there was a case to go before the Conduct and Competence Committee, with the substantive hearing commencing in November 2013 and still unresolved by February 2017, the Panel should not have included, in its appraisal of the public interest, the fact that further delay would mean that the case would probably never be resolved; this would be a matter of considerable concern if fairly avoidable, and the more so if it were brought about by a refusal of a party to engage with the process whereby it could be made fair. This was also a point which was made, or could have been made if of any substance, by Mr Edis in the challenge to the March 2016 decision. And either way, it is not open now to Mr Grant to go behind the judgment of Cheema-Grubb J.
- There were no other changes of circumstance. Mr Grant however submitted that the judgment of Cheema-Grubb J, based on submissions from Ms Richards, had considered that the proceedings would be fair because they would be "very straightforward" and involved no further allegations of dishonesty. This, he submitted, had not turned out to be the case. Indeed, he suggested that Ms Richards had misled her, unwittingly, about the straightforwardness of the issues which remained. I have set out the passages from Ms Richards' submissions and from Cheema-Grubb J's judgment.
- I am prepared to consider this submission only on the basis of how events actually turned out. If at the time, Dr Lovett's legal team had considered that the judgment had been brought into error, it had the remedy of an appeal, but did not take it.
- I do not for my part see that the distinction between dishonesty in the stayed particulars and knowingly false statements in the particulars to be continued, which Ms Richards may have drawn, was either drawn by the Panel which knew exactly what the basis for the case was, or by Cheema-Grubb J. The word may have been used as a shorthand for the different particulars without bringing in any point of principle. This was more a point about internal inconsistency, but not one which shows any misunderstanding by Panel or Judge. There may be more force in the criticism made of the Panel's assessment that the evidence in respect of the stayed particulars was "detailed, complex and potentially confusing" whereas it would be realistic to expect Dr Lovett to be able to re-familiarise himself with the "very straightforward evidence" in relation to those to be continued, notably but not only 6-8. But I reject Mr Grant's point for two reasons: first, as events turned out, there was nothing to support the asserted relatively greater complexity which Dr Lovett would face in dealing with the particulars which were continued by comparison with those which were stayed; this is because at no stage when he had the capacity to do so, had he tried to do so. Had he tried, he might have provided the evidence which Mr Grant lacked. Second, I agree with Cheema-Grubb J's observations about the detailed and careful consideration given by the Panel to the issues; it was plainly in a much better position than this Court to judge how much detailed work would have been required as between the two groups of particulars, in the light of the evidence it had heard, and which might yet come by way of a re-examination statement. The stayed particulars did require comparison of dates in invoices and notes; the continued ones did not require further consideration of session notes because Dr Lovett accepted that they did not contain information which supported the formulations; and he had already gone through such other documents or events or thoughts as he relied on in chief, even if he had not been taken to it for the purpose of cross-examination. Nothing as events turned out shows that what was anticipated to be fair, became unfair. Accordingly, I reject that criticism of the Panel.
- The Panel was under a duty to reach a decision on the allegations if it could do so without unfairness to Dr Lovett, because of the gravity of these allegations, the interests of the two patients, and of the profession and its disciplinary standards. It rightly rejected Mr Horne's submission that the remaining allegations were insufficiently serious to require resolution; if they were well-founded, it was obvious that the patients needed the harm which they caused to be to some degree assuaged, and the public needed to know that that is what had happened; and if not false, but lacking in objective foundation, that too needed to be known for the same reasons; and if genuine and well-founded, then Dr Lovett should be cleared, and the two patients would need to be treated.
- I do not consider that Cheema-Grubb J's judgment means that Mr Grant cannot submit that, looking back over the whole sequence of events, that it was unfair in the event for proceedings to have continued in the absence of Dr Lovett. He of course prayed Jones in aid, but that does have to be read with Adeogba firmly in mind. I have concluded that it was not unfair to continue the proceedings to their conclusion. I have covered many of the points already. However, the Panel was right to note that the complainants had given their evidence and had been fully cross-examined, though in reality there was little of relevance they could say about the particulars which were continued to conclusion. Nonetheless, it meant that the Panel had what advantage Dr Lovett hoped to gain, and Mr Horne was able fully to develop his submissions on the unreliability of their evidence, and to gain from it what he could to support the formulations.
- The Panel also had the very full oral and written evidence of Dr Lovett in chief, where he was able to answer all the questions which he and his team thought it tactically appropriate to ask him about at that stage. This was done in full knowledge, if he had lacked it before the Panel's decision that he had a case to answer, of the way in which the HCPC was putting its case on his knowledge of the falsity of the formulations, and of how they related to the withholding of the medical records. I appreciate that he did not give evidence in chief explaining directly that he had not lied or that he had no motive for presenting views he did not genuinely hold. But that cannot have been oversight, as opposed to a strategic decision that he would wait for such points to be put. Besides, his evidence was that there was a sound basis for his views, that these were indeed his views and he dealt at length with the basis for the views he expressed.
- The Panel had heard his cross-examination on these points so far as B was concerned, and were entitled to accept that there was not much more to be covered in relation to B, and that the ground in respect of A, not being very different, would not have added greatly to their impression of Dr Lovett already gained. I am more sympathetic to Mr Edis' point that cross-examination can strengthen a witness, rather than inevitably serving to undermine their evidence to some degree. But that is usually where there is an honest witness with a sound recollection of the facts. I am also conscious that Cheema-Grubb J agreed with the Panel approach. I accept that the Chair's comments to Mr Edis during the debate over the March 2016 application for a permanent stay, suggesting that Dr Lovett had given his evidence, and effectively saying that what was left was not important, showed a lack of appreciation as to how evidence can develop up to its end. But the evidence yet to be given was an important issue raised in the challenge before Cheema-Grubb J, which she was well placed to appraise for the fairness of the decision, even if, as may have been the case, that particular interchange was not raised by Mr Edis. He of course would have been well aware of it, and in a position to raise it if he thought it useful to do so.
- I think that the Panel had probably reached a clear if not final impression of Dr Lovett from the evidence which it had heard, and were entitled to be sceptical about the extent to which further evidence could help him. It does not say so, but it had recorded impressions of him, and forming some view of Dr Lovett by that stage was inevitable. So I do not regard the Panel as acting unfairly in continuing even though Dr Lovett could give no further oral evidence. Its suggestion and then direction as to a re-examination statement gave him a very fair opportunity to recover any ground he and his team considered had been lost. I am not persuaded that the absence of Panel questions was unfair. None of this was ideal; but it was not unfair. Dr. Lovett was represented throughout by the legal teams of his choice. His evidence had largely been heard. He spurned the opportunity to give his re-examination, almost all of that which was left which was the likeliest to assist him. The Panel had seen him in cross-examination; it is very unlikely that further questions from Ms Norris or the Panel would have reversed the very unfavourable impression he made, rather than confirm it.
- The Panel's approach to the evidence of Professor Powell was also fair. There was no attempt to put further evidence from him before the Panel of the sort which Mr Grant submitted and Dr Lovett would have benefited from on the relationship between formulations and diagnosis. It is not adequate to argue that the Panel had directed that there be no further evidence from Professor Powell. Dr Lovett did not raise the need for further evidence in the event that the Professor's evidence was agreed and accepted where it differed from Dr Halari's. There was no evidence of anything more which Professor Powell might usefully have said.
- Nor was there other evidence which Dr Lovett sought to call, whether character evidence or the evidence of his wife as to his business records, once the invoice issues were out of the way. Mr Grant suggested that Mrs Lovett could have given evidence in support of the genuineness of the October 2008 note of the telephone conversation with Ms Kennedy, which Mr Horne was to make much of in his closing submissions. However, the Panel did not find that that was also a fabrication. Nor did Dr Lovett seek to call her so that the genuineness of it could be placed squarely before the Panel, and challenge invited.
- Mr Grant referred on a number of occasions to the fact that Dr Lovett was on pain killers during the hearing, and found prolonged sitting uncomfortable. There are occasional references in the transcripts to such occasions. But there was nothing to suggest that he or his team sought more breaks or adjournments to enable his evidence to be given better, and no evidence that its quality was impaired.
- I have considered carefully the decision of the Panel on 2 February 2017 to continue with the proceedings. As with its decision of March 2016, which Cheema-Grubb J considered, I consider this to have been careful, detailed and thorough, addressing the issues within the correct legal framework. I consider that it was fair for it to proceed to a final conclusion. I also point out that the fact that the proceedings were so long delayed, between hearings and final decision, was not a point upon which Mr Grant did or could suggest that the decision could no longer be fair.
Conclusions
- Standing back from the array of detailed arguments with which I was presented by Mr Grant, two wholly inconsistent impressions can be formed. The first is that there is something quite unfair about the Panel making a finding so serious as it did that erasure was inevitable, when the registrant had faced allegations which were lamentably drafted in relation to the case actually pursued and found against him, and when he had become so ill during his evidence that he could not continue with it orally, and by the end of the hearing had become too incapacitated to continue with evidence in any form at all, where his evidence about his thoughts and opinions were crucial to the case against him: it ought to have stayed the proceedings permanently. The second is that in substance Dr Lovett and his team knew the essence of the case he had to meet; he had largely completed his evidence, the prejudice through its non-completion was not significant, he had deliberately failed to engage with the hearing when he still had the capability to do so, he always had the presence of an experienced legal team, however composed, and the Panel, directing itself properly as to the interaction between fairness to Dr Lovett and the public interest in concluding the proceedings one way or the other, had reached carefully considered decisions about proceeding with the hearings and had fully explained why they were entitled to reject the evidence of Dr Lovett as untruthful, for reasons which would not have been weakened had his evidence continued its full course. These are essentially the respective contentions of the parties. Despite Mr Grant's skilful and tenacious advocacy, I have come to the conclusion that it is the second impression which is borne out by analysis of the proceedings and evidence, and that the appeal must be dismissed.
- Accordingly, this appeal is dismissed.
Appendix (1): The Panel's Final Decision
At [11], the Panel set out a few observations on its approach to the evidence. It had excluded from consideration evidence relating to particulars which were stayed or where there had been no case to answer. It drew no adverse inferences from the fact that Dr Lovett had not supplied a statement by way of re-examination but noted simply that it did not have whatever evidence it might have contained. It was for the HCPC to disprove any contention raised by Dr Lovett, for example in relation to non-disclosure of medical records. It would not speculate as to what that evidence might have been. It would not make a finding adverse to Dr Lovett unless there were reasonable and proper grounds for rejecting an alternative explanation. Although Dr Lovett had intended to call Professor Powell, he did not do so because his report was agreed by the HCPC, and the Panel thought that there were few differences between his views and those of Dr Halari, but to the extent they diverged the opinions of Professor Powell were to prevail.
The Panel expressed its views on the witnesses at [12]:
"A and B: they are twin sisters and their presentation to the Panel had many similarities. They were articulate and self-confident … "with a strong air of the correctness of their interpretation of events", and doing their best to recount events to the best of their recollection, "the reliability of their testimony was compromised in two ways. First, the events in question had occurred over an 18 month period several years previously… at a time of great upset and upheaval [when they had] few reliable markers by which to fix particular events and issues and the passage of time had clearly taken its toll on the accuracy of their recollections of many details. They had to accept on occasions that they were mistaken. Second, both… had developed significant antipathy towards Dr Lovett. They made no attempt to hide this and made clear that their strongly held view was that Dr Lovett had exploited and cheated them, betraying the trust they had placed in him stop their recollection of interactions with Dr Lovett was coloured by this antipathy and his conduct always liable to a negative interpretation. Accordingly, when assessing their evidence the panel took great care in considering the extent to which it could be relied upon."
"Dr. Lovett. In assessing the credibility and reliability of Dr. Lovett, the Panel took into account his good character and that he is a well qualified and very experienced clinical psychologist. In the light of that professional background the Panel would have expected a clear, logical and reasoned defence of his professional views and conduct. In the event he presented quite differently. As will be seen when the Panel turns to explain its particular decisions, his evidence was frequently inconsistent, occasionally evasive and sometimes misleading. His decision making processes were opaque and his explanations for his conduct were confusing and unconvincing. Accordingly the Panel considered that his evidence has to be approached with caution and his explanations carefully scrutinised in terms of their plausibility and credibility."
The Panel opened its consideration of particulars 6 to 8, with a general discussion:
"16 In dealing with Particulars 6, 7 and 8 the Panel has considered each separately but, to avoid unnecessary repetition, explains its reasoning behind its finding looking at them together, as they are essentially linked. They are linked because the validity of the reasons put forward by Dr. Lovett for not providing the records to the G.P.s (particular 6) are essentially the same as the alleged false or unjustified statements subject of particulars 7 and 8. Thus it is not possible sensibly to disentangle particular 6 from either particular 7 or particular 8, and whilst it would be possible to deal with matters separately in relation to Service User A and Service User B, the material and issues to be considered are so similar that it would be unhelpfully repetitive to do so.
17 It is not disputed that, in the absence of a good reason or lawful excuse, Dr. Lovett was under a duty to provide the records requested and the crux of the case in this regard was whether Dr. Lovett had, or genuinely believed he had, any good reason or lawful excuse to withhold his notes, or to put conditions on disclosure of them. In determining this issue the Panel took as its basis for consideration, the test set out in the agreed expert opinion of Professor Powell [7/1074]:
"If I were asked whether it was reasonable for Dr. Lovett to refuse to disclose records direct to the clients, then I would say that I have never met any of the clients and cannot therefore express an opinion. It is for Dr. Lovett to explain why he would only release the notes under the supervised circumstances. That was Dr. Lovett's professional view, and it is for the Panel to decide (a) whether it was his genuine professional view and (b) whether they have sufficient evidence to say that his opinion was wrong
…"
Accordingly, the Panel first considered "whether it was Dr. Lovett's genuine professional view", i.e. that he could only release the notes under supervised circumstances, as he told the G.P.s, and whether the reasons, which are the subjects of particulars 7 and 8, represented his genuine opinion.
"19. Dr. Lovett's evidence was essentially that he could not unconditionally disclose his notes because to do so would cause harm to the A and B. The reasons it could cause harm were that in both cases the notes contained a diagnoses of personality disorder which could cause distress and anger which, particularly in the case of someone with a personality disorder, could cause harm. He summarised his position in his evidence in chief when he said, "My fear was that these notes would be misunderstood; they would cause significant distress and harm in a situation which was volatile and changeable. And these particular, or , my particular...which I call "formulations" needed explanation". Dr. Lovett set out his concerns even more graphically in a letter to B's GP dated 5 March 2012. This letter was never sent, but Dr. Lovett stood by its contents as explaining his position. The letter made reference to features of "personality conditions…suffering with a mixed personality disorder showing features of both narcissistic personality disorder and borderline personality disorder", for all of which Dr. Lovett claimed in the letter there was substantial evidence, and which he said justified his concerns about disclosure.
20. Dr. Lovett also asserted unequivocally in his statement that, "Informing a client or patient that they suffer with a form of personality disorder requires specialist skill and knowledge. It is significantly different to diagnosing an anxiety disorder, depression or for that matter, PTSD…Given the circumstances, I had real concern for the impact that the entries in the notes might have on my former clients if they were simply to receive this material in the post without any support or explanation…I did, however, state that I would be prepared to provide them to a suitable healthcare professional…I had in mind a professional with an expertise in psychological care. I was anxious about providing them to a non-specialist such as a GP…"
21. In explaining how he came to this view, Dr. Lovett asserted that, despite previously, and for the overwhelming majority of the time that he interacted with A and B, having considered that they were both presenting with issues arising from post traumatic stress, anxiety or adjustment, he was prompted by events to review his opinions and create new formulations respectively, each of which included a diagnosis of personality disorder. Neither formulation was dated, and none of the material included therein had been discussed with either A or B. Dr. Lovett was unsure of when his change of opinion occurred, but suggested that, "It began to click around Spring [2009], and certainly by the June time". In relation to the new formulation for B, he said, "I can't tell you the date. I know that it was made between…Towards the end of June and July [2009]". It certainly appeared that it occurred after 22 April 2009 in relation to which he stated, "Whilst I was increasingly of the opinion that there may be some personality overlay at work with both [A and B], it is one of prioritising really. My view was still that this was the immediate stress and the demands of the environment and the family that was probably generating these problems and therefore that was still the most pressing clinical aspect to focus on".
22. In relation to A, Dr. Lovett claimed that the most significant event in his change of directions towards personality disorder was a session on 14 May 2009 when she presented as angry and upset by a newspaper article written by her brother-in-law. In relation to B, Dr. Lovett did not claim that there was any significant event which prompted his change of opinion towards his formulation and diagnosis of a personality disorder, but he implied that it arose from a review of material already in his possession which he had previously attributed to stress, anxiety or adjustment.
23. In refuting a suggestion based on the absence of any relevant references in his session notes, that his formulations and diagnoses of personality disorder had been subsequently constructed to justify his refusal to disclose his notes, Dr. Lovett referred to a note of a telephone conversation with his Instructing Solicitor, Ms JK. That call was dated 29 October 2008. Dr. Lovett noted that he, "Explained [to Ms JK] that both B and A present more like PD's and that extreme trauma can make underlying personality issues reemerge…"
24. Dr. Lovett's explanation for not having discussed any of the issues arising from his formulation and diagnosis of personality disorder with either A or B, was that the former was pregnant, and he considered that raising the issue with either of them could initiate an extreme reaction which could harm A.
25. In support of his diagnoses of personality disorder, Dr. Lovett referred to a number of occurrences of which he was aware and which he considered to exemplify the criteria for a diagnosis of personality disorder. These examples were that:
a. A and B had unrealistic expectations of others and failed to understand boundary issues. He referred to complaints from a member of staff at a care management company with which A and B were in dispute regarding its responsibilities towards another family member. He referred also to discussions he had had with his Instructing Solicitor on what appeared to be the same issue.
b. A had expressed anger and resentment over a newspaper article written by her brother-in-law. He suggested that this was significant because it was a direct observation of behaviour that he had not seen before, but had been relayed to him, i.e. that described at a. above.
c. A had emailed him on 8 December 2008 and this revealed that she had left a person for whom she had responsibility, an individual who 'lacked capacity', in charge of young children, but was concerned only that the person did not appreciate her needs. This was put forward by Dr. Lovett as an example of A showing serious misunderstanding of a vulnerable person's needs.
d. B revealed that she had dismissed her housekeeper following an argument over her refusal to undertake wider responsibilities involving occasional childcare. She had become very angry on encountering the former housekeeper working in a charity shop. This was given as an example of "an increasing instability in her presentation".
e. B had told him that she had fond memories of her childhood and being brought up in a mansion. This was suggested as an example of grandiosity.
f. B had told him that she missed her husband who was away during the week at work. This was put forward as an example of 'a strong element of a sense of being abandoned'.
g. B had expressed her anger regarding an Orthopaedic Consultant whom she saw as responsible for a Disability Living Allowance being disallowed, and that the family may launch a campaign against him.
h. B experienced distress about her leg which had sustained a serious de-gloving injury in the index incident, and had thoughts of wanting to cut it off.
i. People were very cautious around A at times, wanted to please her and were certainly worried if they antagonised her. This was given as an example of 'a grandiose sense of self-importance'.
26. However, as Dr. Lovett developed his evidence and attempted to clarify his reasoning he contradicted himself on a number of critical points. Significant examples in this respect occurred in both his examination in chief and in his cross-examination. The most significant contradiction was his subsequent assertion that in relation to B, the material which he had previously referred to as a diagnosis was not a diagnosis, but only a formulation. (See Dr. Lovett's witness statement). In relation to his formulation for B Dr. Lovett said in his examination in chief, "This was written as a reminder to me. It was me thinking out loud but writing it on the page to make a file note. In many respects I never saw this as actually part of B's notes, but once a problem had arisen, I simply couldn't remove it. It left me with an ethical dilemma." He was further asked in relation to that material, "Were you certain when you wrote those words down that that was what was fundamentally at issue with [B]?" His answer was, "Not at all...this was not a diagnosis of any kind…and certainly I have never conceptualised [B] or [A] as experiencing any more than a mild or moderate type of personality dysfunction". The issues previously put forward as a diagnosis of a personality disorder were then described on his behalf as "your tentative views on the traits in play".
27. These contradictions developed further in the evidence Dr. Lovett gave under cross-examination when he retreated almost completely from his earlier assertions that he had good reasons for believing that A and B had personality disorders. In relation to whether B could properly be said to have this "formulation NPD/Borderline mixed", he said, "I don't make the claim that necessarily they can be properly describe…I had no intention of actually working with [B] or [A] in terms of treatment of personality traits particularly because I'd got a relationship, I tried to do some initial assessment I think, and I think I would have needed to review matters at that point. The formulation…is very much a note to me because I knew that in fact I wouldn't be seeing [A] for a while…And for [B] the same in many respects because it would've been very, very difficult to have started to discuss such issues with [B]. Again, I'd n ever conceptualised these problems as really anything more that mild or moderate…" He then went on to describe the formulation in respect of B which had previously underpinned his "diagnosis" of narcissistic/borderline personality disorder as, "…it was actually a note to me that really wasn't a clinical note at all. It really was just my mental thoughts, my ideas put down that had we gone on I would've actually confirmed or disconfirmed. It wasn't a diagnosis and it wasn't a fixed formulation". He continued, "It wasn't an assessment, it was just some ideas. It was thoughts really that I was putting down on paper".
28. In the light of this shift in Dr Lovett's evidence about the nature of the material previously described by him as diagnoses of personality disorders, but subsequently described as just some thoughts or ideas put down on paper and, "not a clinical note at all". The Panel then examined Dr Lovett's explanation of why he had believed that a disclosure of his notes had required the inclusion of this material.
29. In his witness statement Dr. Lovett suggests, "What I could, and probably should, have done was to separate the notes from the diagnosis. In truth it was the diagnosis that was likely to be the part that would cause difficulty for [B] and [A] and it would have been possible to have disclose (sic) the notes but not the diagnosis. I believe that the notes (because they are my aide memoire to what was actually said) with some interpretation from me may have been upsetting but not such a focussed (sic) manner as the diagnosis itself" However, in his evidence in chief, referring to this material as it related to B he asserted "In many respects, I never saw this as actually part of [B]'s clinical notes, but once a problem had arisen I simply couldn't remove it. It left me with an ethical dilemma." In cross-examination when it was pointed out in relation to the same material that he had appeared to have treated similar material differently and removed it from his notes, Dr Lovett said, " I put this into the clinical notes, it was written, it wasn't an assessment, these were my thoughts and, therefore , when this case…. When we actually started to get the complaints I just felt ethically I couldn't remove it. I couldn't remove it. I just out it into the assessment part of my file. It wasn't an assessment, it was just some ideas. It was thoughts really that I was putting down on paper."
30. At another juncture of his cross-examination, Dr Lovett stated, "It has never been my practice to disclose information about my assessments of individuals, either to G.P.s or, for that matter, in legal matters…" He continued, in relation to not disclosing a visual formulation but considering that he had a duty to disclose a narrative formulation, "Because I actually saw this as distinct, and maybe incorrectly I saw this distinct and part of my assessment process and distinct from my clinical records such as…"
31. The Panel then considered whether in the light of all this evidence, it was Dr Lovett's genuine professional view that he was justified in not providing his notes to the service users and/or to their G.P.s for the reasons he gave. In coming to its decision on this question the Panel noted in particular the following points:
a. When his purported diagnoses of personality disorder in relation to both service users were examined, Dr Lovett denied that they were diagnoses and claimed that they were formulations, works in progress, potentially an alternative way of interpreting evidence which he had hitherto considered to be features of other psychological issues, such as adjustment to the aftermath of a traumatic event.
b. When his formulation in relation to B was challenged, Dr Lovett retreated further, describing it variously as, "actually a note to me that really wasn't really a clinical note at all", and… it was just come ideas" and more in the same vein.
c. The evidence put forward by Dr Lovett to support his contention that he was justified in either diagnosing or even formulating any form of personality disorder in relation to either A or B was entirely unconvincing. It appeared to the Panel that without gross exaggerations of the nature of the incidents to which he referred, those matters were all much more reasonably to be considered referable to the impact of the trauma and stress on the service users, in relation to which Dr Lovett's services had been engaged. The way in which it appeared to the Panel that Dr Lovett was prepared exaggerate and distort what seemed to relatively trivial matters was well illustrated by the matters referred to in paragraph 25 of this determination. Furthermore, the Panel took the view that Dr. Lovett's evidence was misleading on occasions, such as when asked if any of the examples he was using were "enduring" or pervasive" in nature, as would be required to raise a concern about a personality disorder, he said "….I thought that that may be the case, but I have no…I have no conclusive evidence by any means that that was the case." This was clearly misleading as he was implying that he had some, albeit not conclusive, evidence, and he must have known that he had no evidence at all.
d. Dr. Lovett's evidence in relation to what, out of his records, he ought to disclose was incoherent and made no sense. He variously implied that he could have withheld the potentially harmful material even when he described it as diagnoses, but also indicated that, even when it qualified as no more than a few ideas and not necessarily even a clinical record, he felt it had to be disclosed.
e. When originally asked for the clinical notes of B and A, albeit not by their G.P.s or other medical professionals, Dr. Lovett raised none of the concerns that he subsequently expressed. In fact, he stated in a letter that he would be pleased to provide them when his outstanding invoices were paid. He then entered into further correspondence to explain what he claimed he was owed. Although Dr. Lovett claims that this response was made on legal advice it begged the question of what information from Dr. Lovett any such purported advice was based on. In any event, had there been genuine reasons for believing that service users would be exposed to the risk of harm by the disclosure of records relating to them, Dr. Lovett would have been under a professional duty not to disclose the records whatever legal advice he was given.
f. Dr. Lovett maintains that the risk of harm in disclosing his notes could only be properly addressed by providing them to "a suitable healthcare professional…I have in mind a professional with expertise in psychological care". This only makes sense if his notes included not only a diagnosis of a personality disorder, but some reasoned basis for such a diagnosis. It appeared to the Panel that even the best qualified professional with expertise in psychological care would not be able to provide any support or assistance to either A or B or their respective G.P.s. if presented with simply with "really just my mental thoughts, my ideas put down that had we gone on I would've actually confirmed or disconfirmed…". Dr. Lovett's assertion that this material needed to be released in a "safe and controlled manner" makes no sense in the light of his contentions that it did not amount do diagnoses and, in any event, had not been worked on, thought through, exemplified, or referenced to any of the session notes. This point is underlined, particularly with regards to B, by Dr. Lovett's agreement in cross examination that his contemporaneous written notes do not support in any way the formulation.
g. If Dr. Lovett's claim is correct that his note of a telephone conversation with his Instructing Solicitor in October 2008 shows that he was already considering issues of personality disorder at that stage, and that, therefore, they could not simply be a device to justify non-disclosure, then he must be wrong to that these issues only "clicked" around Spring or Summer 2009. He would also have no basis on which to claim either that he felt it was inappropriate to broach the subject with either of A or B (A was not pregnant then), or that he had no real opportunity to start to try to "confirm or disconfirm" his "ideas".
h. It was noted that although in his statement Dr. Lovett says, "…it appears to be [A]' belief that she only ever saw me on four (possibly five) occasions…my records show that I met with her on many more occasions that she recalls", in a leter to A's Solicitor on 11 October 2010 he states, "Whilst I saw[A] at her sister's house on many occasions, it is my opinion that there are only three appointments the (sic) represent clinical sessions with her." In that respect the opinion of Dr. Halari is relevant when she suggested that Dr. Lovett's contact with A was so limited that it would be "difficult" to come to his formulation of personality disorder. Dr. Halari was referring, of course, to the formulation as described in his statement rather than the significantly reduced version settled on by Dr. Lovett at the end of his oral evidence.
i. Dr. Lovett's claimed concerns about personality disorders affecting either A or B are not supported by any of their health records gleaned from other professionals involved in their care, which were produced as a result of disclosure applications made by Dr. Lovett in advance of the commencement of the hearing. This lack of support is particularly apparent in relation to B, who appears to have been dealt with by a significant number of health professionals over the period before and after the tragedy at the root of this case. The only mention of personality issues comes from Dr. Cleare, a Psychiatrist whose report of his first assessment of B dated 28 December 2007 notes, "a degree of histrionic overlay, which likely relates to [B]'s pre-morbid personality" but who diagnosed a combination of Post Traumatic Stress Disorder and Major Depression."
32. Having carefully considered all those points the Panel has been persuaded that it was not Dr. Lovett's genuine professional view that he was justified in not providing his notes to A and B and/or to their G.P.s as alleged at Particulars 6(a) and 6(b). It was clear to the Panel that on his own evidence there was no justifiable basis on which he could have come to a diagnosis of any kind of a personality disorder in relation to either A or B. As such there was no justifiable basis on which he could have considered himself under an obligation to provide any information or documentation which included or implied such a diagnosis in any health records he had a duty to disclose. Having accepted that the formulations he provided were only ideas to explore, he must have known they could not make sense to any third party. They were effectively inexplicable and had no place in records to be shared with any other health professional. Thus Dr. Lovett had no good reason or lawful excuse not to provide the health records requested.
Particulars 6(a) and 6(b) are both proved
33. On the same basis and for the same reasons, the Panel also found proved the particulars at 7(a), 7(b) and 8 in so far as they related to the allegation that Dr. Lovett's statements to the G.P.s were unjustified. The Panel has interpreted the wording of the allegation in 7(a) as linked to failure to provide the health records subject to particular 6 as that is clearly its import, that is how it has been presented and that is how it has been defended. To do otherwise would make a nonsense of particular 7(a) as it would be trite to suggest that a service user has "underlying psychological problems" if they are engaged in therapy with a Clinical Psychologist.
34. In further considering particulars 7(a), 7(b) and 8 as to whether the statements were false i.e. whether Dr. Lovett knew they were not true when he made them, the Panel considered whether there could be some other explanation for his conduct, such as simply a mistaken belief in the validity of his formulation of personality disorder. However, the Panel rejected that possibility for several reasons. First, it is very difficult to reconcile with Dr. Lovett's initial response to the request for his records which was to say that he would be pleased to disclose them subject to payment of his outstanding invoices. Second, it is impossible to reconcile with the content of his draft letter to Dr. Cross of 5 March 2012, which although not sent was adopted by Dr. Lovett as valid when he gave his evidence in chief. In that letter Dr. Lovett makes extensive claims about the presentation of B which involve gross distortions of relatively trivial matters so as to exemplify his claimed diagnosis of personality disorder. This was no accident or oversight but a clearly false picture. Third, Dr. Lovett is a highly qualified and very experienced Clinical Psychologist for whom such a mistake simply not credible."
Particulars 7(a), 7(b) and 8 are proved in relation to making false and unjustified statements
Mr Grant also referred to the following passages in the Panel's decision on misconduct:
"The Panel first considered the matters dealt with in Particulars 6(a) and 6(b), the failures to provide the Service Users and their GPs with copies of their health records. The Panel has found the Dr. Lovett had no good reason not to provide the records as requested, he had no basis on which to set the conditions he laid down for their provision, and it was apparent from the evidence of both Service Users that his failure to provide the records caused them significant concern. Whatever the basis for the Service Users' earlier concerns about Dr. Lovett's conduct, his prevarication over the provision of their helath records further undermined their trust in him. Even without the seriously aggravating feature of the false and unjustified statements Dr. Lovett made in the context of h is refusal to provide the records, it is the Panel's view that his failures to provide the records as requested were serious professional failings and breaches of the following standards of the HCPC Standards of Conduct, Performance and Ethics Committee:…
The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. However, the Panel was satisfied that Dr. Lovett's behaviour fell far below the standards expected of a registered Practitioner Psychologist. Whatever Dr. Lovett's motive for his refusal to provide the records, it caused upset to the Service Users and was clearly not in their best interests. In compliance with the requirement to communicate properly and effectively with service users and other practitioners, Dr. Lovett should have promptly provided the health records as requested, having exercised appropriate professional judgement in relation to what he should responsibly include therein.
Dr. Lovett's failings in this regard were serious and would be regarded as deplorable by fellow professionals. The matters found proved at Particulars 6(a) and 6(b) amount to misconduct.
The Panel then gave consideration to the same question in relation to its findings on Particulars 7 and 8. These findings are that Dr. Lovett made the relevant statements without justification and knowing them to be wrong. The mischief of these statements was not simply what was said on the face of the documents but that they directed the reader to purported diagnoses on which they were based. These purported diagnoses of personality disorder, narcissistic/borderline/mixed, were inevitably extremely distressing to the Service Users to whom they related. Dr. Lovett's conduct was deliberate and it is apparent that it caused considerable anguish to both Service Users. Dr. Lovett had a good knowledge of these Service Users, he knew of their vulnerabilities and he must have known what sort of impact on them his statements were likely to have. It is the view of the Panel that his conduct in this regard and in relation to each particular amounts to a very serious breach of Standards 1 and 7 (above) of the HCPC Standards of Conduct, Performance and Ethics Committee…"
Appendix (2): Anonymity
At the outset of the Panel hearing in November 2013, anonymity for A and B was considered. They did not in fact ask that any part of the evidence concerning their medical conditions be heard in private. The Panel had no power to order anonymity in relation to evidence heard in public; it decided that it would judge when evidence should be heard in private, which it did on a number of occasions, including some of those in which the issue of personality disorders arose. Its published decisions however refer to "service users A and B", whom I have referred to as A and B.
At the outset of the appeal, Mr Grant asked that I should lift an order protecting the identity of A, B and C made by Choudhury J on 30 November 2017 in connection with an unsuccessful application for permission for Dr Lovett to call evidence for the appeal that was not before the Panel. Mr Grant identified a particular aspect of the public interest involving the actions of A's husband. I maintained the order because the interests of C, and A and B's children, needed to be protected; this was not an appropriate case for any part of the hearing to be in private; and the judgment would need to refer to the personality disorders which it was said by Dr Lovett that A and B might have, in order for the basis of the Panel's findings, and this Court's decision on the appeal to be understood. This was obviously an important case for Dr Lovett, for A and for B, but in view of the particulars, findings and consequences, it was also important for the public that the reasons why Dr Lovett was struck off, or, having been struck off, was successful in his appeal, should be public. I could think of no way of achieving those various ends, other than by anonymity, as ordered by Choudhury J. I add that, towards the very end of the appeal hearing, I received a written request from a BBC journalist that anonymity be lifted. After hearing from the parties briefly, but not from A or B, I replied saying that if a media organisation wished to make an application for the lifting of that order, it could do so, if it thought fit, in the light of the judgment after its delivery.
